Beckert & Beckert
[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
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247;
Tate v Tate (2000) FLC 93-047; [2000] FamCA 1040
Number of paragraphs: 123 Date of hearing: 29 April 2021 Place: Melbourne delivered in Sydney Counsel for the Appellant: Mr Stavris Counsel for the Respondent: Mr Laidlaw Solicitor for the Respondent: Sayer Jones Independent Children’s Lawyer Did not participate in the appeal ORDERS
SOA 85 of 2020
MLC 13463 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BECKERT
Appellant
AND: MS BECKERT
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
STRICKLAND, ALDRIDGE & WATTS JJ
DATE OF ORDER:
15 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Amended Application in an Appeal filed 23 April 2021 be dismissed.
2.The appeal be dismissed.
3.The husband pay the wife’s costs fixed in the sum of $13,000.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckert & Beckert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, ALDRIDGE & WATTS JJ:
INTRODUCTION
By the Amended Notice of Appeal filed on 17 March 2021, Mr Beckert (“the husband”) appeals all parenting orders and the property settlement order made by a judge of the Family Court of Australia on 10 September 2020 and seeks that all orders made be set aside. Ms Beckert (“the wife”) opposes the appeal.
The final parenting and property hearing (in these reasons “hearing” and “trial” are used interchangeably) was scheduled for five days commencing 27 July 2020. At that time the Court had ceased face to face hearings in response to the COVID-19 pandemic. The hearing took place electronically using the Microsoft Teams platform (“Teams”) by video and audio link. The primary judge found that shortly before lunch on 28 July 2020 the husband had abandoned the proceedings without notice to the parties or the Court. The wife and the Independent Children’s Lawyer (“ICL”) made an application that the hearing proceed on an undefended basis; the primary judge acceded to that application and made that interlocutory order (the “undefended hearing order”). The effect of this order was to exclude the husband from further participation in the hearing which was completed in his absence and concluded at 3.02 pm on the second day, 28 July 2020.
The primary judge made final parenting orders and a final property settlement order based upon the evidence before her Honour as at the end of the undefended hearing and the submissions made by counsel for the wife and the ICL.
At the hearing of the appeal, the husband abandoned the grounds of appeal that challenged her Honour’s reasons for making the parenting orders and the final property settlement order. Thus the fundamental question in this appeal is whether there was a miscarriage of justice as a result of the primary judge making the undefended hearing order.
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
The hearing took place over two days on Microsoft Teams with the husband at times participating by audio on a landline telephone connection from his business premises.
Day One
On the first day:
(a)The wife made a lengthy opening statement;
(b)The husband made an unsuccessful application to discharge the order made 9 October 2019 which declared that pursuant to s 102NA of the Act the husband was not at liberty to cross-examine the wife. The result of that application was inevitable given the husband’s convictions for breaches of a family violence order and the mandatory provision in s 102NA(1)(c)(i) of the Act;
(c)The wife gave oral evidence in chief and in reply and was cross-examined by the ICL. During this part of the hearing, the husband participated by audio, at times responding and interjecting;
(d)The husband made an application that the primary judge recuse herself because of actual bias arising from the “blatantly wrong” ruling in respect of his application for a discharge of the order made pursuant to s 102NA of the Act. That application clearly had no merit and was properly dismissed;
(e)The husband commenced to give oral evidence and had been cross-examined for over an hour when the Court adjourned at 4.38 pm;
(f)On occasions during the first day, the husband was not able to use the computer equipment he had in his business premises to provide a consistent quality of audio to ensure a complete transcript could be taken. From time to time, the primary judge directed that the husband participate by direct audio telephone link from his office;
(g)The husband repeatedly failed to comply with directions of the Court and was offensive and contemptuous;
(h)When invited to open his case, the husband instead attempted to renew his application to be able to cross-examine the wife;
(i)During cross-examination, the primary judge gave the husband a number of warnings in relation to his lack of responsiveness and his behaviour generally which included:
HER HONOUR: … are you… intent on disrupting this trial … and precluding it from continuing?[1]
…
HER HONOUR: … your behaviour is completely inappropriate in a courtroom. Completely. You are being asked a very simple thing …[2]
(j)Subsequently her Honour said to the husband, “I’m now directing you to be quiet and await”[3] and then the primary judge warned the husband on three occasions, “[d]on’t yell”[4]. When the husband denies that he was, the primary judge responds, “Okay. You are – your behaviour is again entirely inappropriate”.[5]
[1] Transcript 27 July 2020, p.70 lines 7–15.
[2] Transcript 27 July 2020, p.79 lines 19–20.
[3] Transcript 27 July 2020, p.84 line 28.
[4] Transcript 27 July 2020, p.84 lines 40–44.
[5] Transcript 27 July 2020, p.84 line 46.
When the husband’s connection first failed, the primary judge had her associate contact the husband at his business premises. The husband explained his disconnection in the following way:[6]
[THE HUSBAND]: … When I moved the laptop closer to me, it pulled the power cord and it has created something of a problem in terms of restarting it. It’s looking like it’s doing it now.
[6] Transcript 27 July 2020, p.10 lines 36–38.
This is the first of three occasions during the hearing where the husband asserts that his disconnection from the proceedings was as a result of him dislodging a power cord or a cable.
During the substantial periods when the husband’s audio connection was by landline, there were no apparent difficulties. The husband however from time to time attempted to reconnect using video on Teams.
Day Two
At the commencement of day two, all the parties joined the hearing on Teams using video.
The husband’s cross-examination continued and he resumed being regularly unresponsive when answering questions and made frequent belligerent statements to the primary judge and to counsel for the wife. The husband refused on multiple occasions to heed the primary judge’s direction to answer the question and not use a question as an opportunity to make a speech or ask a question in return.
Shortly after the commencement of that cross-examination the primary judge intervened when the husband was being unresponsive to a question he was asked. The husband said to the primary judge, “[a]m I going to be interrupted all day, every day?” to which the primary judge responded, “[the husband], do not yell at me”[7]. A short time later the primary judge began to warn the husband to which he responded, “For God’s sake. Yes. Just get on with it”.[8]
[7] Transcript 28 July 2020, p.99 line 14 and line 16.
[8] Transcript 28 July 2020, p.99 line 36.
In response to a question, the husband replied, “this is a cross-examination, not an interrogation”.[9]
[9] Transcript 28 July 2020, p.100 lines 35–36.
The primary judge said:
HER HONOUR: [The husband], you are behaving in a very difficult manner. You are – I – I don’t know whether you’re attempting again to disrupt this trial – to lengthen this trial. There are times when your behaviour is – and responses are farcical …[10]
HER HONOUR: [The husband], your behaviour is now quite contemptuous of the [C]ourt. I will only ask you one more time, please, keep quiet. [Counsel for the wife] is cross-examining you.[11]
[10] Transcript 28 July 2020, p.110 lines 13–16.
[11] Transcript 28 July 2020, p.110 lines 32–34.
The husband accused the primary judge of interrupting him[12] and mockingly said in relation to two warnings given by the primary judge, “[n]ext question”.[13]
[12] Transcript 28 July 2020, p.110 lines 44–45.
[13] Transcript 28 July 2020, p.111 line 2 and line 4.
The husband then asserted that he could not hear counsel for the wife’s next question in cross-examination[14]. It is a reasonable inference that after what the husband perceived as a testy exchange with the primary judge, he seems to momentarily assert that he could not hear the cross-examiner’s next question. When the primary judge checked with all other participants as to whether or not the audio was working both ways and they confirmed that it was, the husband seemed to then be able to hear the question.
[14] Transcript 28 July 2020, p.111 line 11.
The primary judge subsequently said:[15]
HER HONOUR: … [The husband]. We are unable to conduct this trial with you behaving in this manner. Now, I don’t really know – I’m not quite sure at the moment what cause might need to be adopted if you continue in this way, but, I can assure you that I am forming the opinion that you are attempting to disrupt the trial and make the trial almost impossible to conduct. Now, I would not like to reach that conclusion.
[15] Transcript 28 July 2020, p.117 lines 5–10.
There were concerns about the completeness of the audio feed from the husband whilst he was connected to Teams by video on his computer, particularly when he turned away from the microphone on his computer and on a number of occasions the primary judge indicated to the husband that he would have to return to the landline audio link that worked well on day one.
After a number of non-responsive answers, the primary judge formed the view the husband might be drunk. That view by the primary judge is the subject of a complaint on appeal by the husband, although not a specific ground of appeal, to which we will come to later.
The primary judge also warned the husband he needed to take his hand away from his face and speak into the microphone. After multiple warnings about how the husband was responding to questions, his general behaviour and his use of the audio facility on his laptop, the primary judge said:[16]
HER HONOUR: [The husband], you are an officer of the court?
[THE HUSBAND]: Yes.
HER HONOUR: You are not answering what is asked of you. It is very concerning, the manner in which you are behaving – conducting yourself. Allow [counsel for the wife] to ask you the next question and do not say anything until he does. Thank you.
[16] Transcript 28 July 2020, p.131 lines 18–22.
Counsel for the wife then asked the husband:[17]
[COUNSEL FOR THE WIFE]: [The husband], can you answer this question please. The July of 2019 – that’s July of last year – did you make an application for finance in relation to the purchase of a [luxury] vehicle? Yes or no? [The husband]?
[17] Transcript 28 July 2020, p.131 lines 37–40.
Immediately after this question both counsel for the wife and the primary judge comment that the husband had left the hearing.
Immediately after that, the associate informed the primary judge that the husband had “left the meeting”[18]. That is, the connection by the husband to Teams had been terminated by the husband.
[18] Transcript 28 July 2020, p.132 lines 4–5.
The primary judge issued an instruction to the associate to ring the husband’s business premises, and inquire whether or not the husband wished to rejoin the meeting.[19] Her Honour also indicated that would be done by the audio means “that we did yesterday, as that did provide clarity for transcript”[20].
[19] Transcript 28 July 2020, p.133 line 4–6.
[20] Transcript 28 July 2020, p.133 lines 7–8.
When the associate rang the husband’s business premises, the husband answered. He asserted, for the second time, that a connection had been lost because a power cord had been pulled out.
The husband then reconnected to Teams on his computer but did not turn on his camera or his audio.
The associate then again contacted the husband on the landline and her Honour said:[21]
HER HONOUR: The [C]ourt cannot be satisfied that a visual – that a video link with you will enable this proceeding to occur. In these circumstances, the [C]ourt is only satisfied that an audio link will suffice for Auscript to be able to provide a transcript and for the hearing to proceed. I am now going to have my associate make the necessary arrangements for an audio link with you to continue this proceeding, and you will not be connected via video because the [C]ourt cannot be satisfied that that means of hearing the matter can proceed at your end in this particular way. We need a transcript, and an audio link is the way in which that would be able to be achieved.
[Associate’s given name], could you please make those arrangements that you made yesterday so that we can successfully hear the husband in the proceedings. So for the moment, [associate’s given name], will we just perhaps – in terms of the Microsoft Teams, I might say to counsel – you can turn off your cameras and mute yourselves. And while we wait for – as I will do while we wait for my associate to connect [the husband] in the manner that he did so yesterday, the audio link, which was successful, so that we can proceed.
[21] Transcript 28 July 2020, p.136 lines 3–17.
Critically, the following occurred at about 12.15 pm:[22]
HER HONOUR: [The husband], you will appear by audio link, which you are now doing, and ‑ ‑ ‑
[THE HUSBAND]: Let me be clear about one thing.
HER HONOUR: We can go on ...
[THE HUSBAND]: Is it the case that the only links in are audio by both opposing counsel and myself?
HER HONOUR: No. [Counsel for the ICL and counsel for the wife] are connected via video link, and you are connected via audio link because of the – I won’t say that further. All right. Thank you.
ASSOCIATE: Your Honour, I’m just confirming that [the husband] has left the meeting. He has hung up the phone.
[COUNSEL FOR THE WIFE]: I heard that. Your Honour ‑ ‑ ‑
HER HONOUR: Yes, [counsel for the wife].
[22] Transcript 28 July 2020, p.137 lines 15–34.
The primary judge found that at this moment, the husband had abandoned the proceedings. That finding is central to the determination of this appeal.
Counsel for the wife then addressed the Court and made an application that the proceedings continue on an undefended basis without the participation of the husband. He made short submissions in support of that position. The ICL supported the application. The primary judge indicated “the [C]ourt will accede to that application for reasons it will give” and “the matter will now proceed undefended”.[23]
[23] Transcript 28 July 2020, p.138 lines 26–27.
Rule 17.01(1)(a) Family Law Rules 2004 (Cth) (“the 2004 Rules”) (now r 10.19(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) provided that an order is made in a hearing or trial when it is pronounced in court by the judicial officer. The pronouncement made by the primary judge was made during a “trial” as defined by the Dictionary in the 2004 Rules.
Given the husband’s absence, his case had concluded. Neither the wife nor the ICL sought to cross-examine the husband’s witnesses or any of the experts. The ICL formally tendered the material in her electronic tender bundle.
The ICL commenced her submissions in respect of final parenting orders, which after a time were interrupted:[24]
ASSOCIATE: I’m terribly sorry to interrupt. I just wanted to make sure this is on the transcript and check with your Honour. [The husband] has requested again to join the meeting. From this point onwards, is it the understanding that I will reject that request?
HER HONOUR: Yes, [associate’s given name]. Could I – at this point on, I think I should – I have already indicated that the matter is proceeding undefended. I think I shall make an order to that effect, and so could you please prepare for me an order that the matter shall proceed undefended, or perhaps the order shall be that the matter hereafter – or, no, that the matter shall proceed undefended.
[24] Transcript 28 July 2020, p.142 lines 8–17.
As indicated, the primary judge had in fact already pronounced, in Court, that the matter would proceed undefended and that order was effective from the time at which it was pronounced.
The ICL then completed final submissions and the wife made her final submissions.
At 3.02 pm her Honour reserved her judgment and indicated that her associate would communicate with the husband to indicate that judgment had been reserved and that chambers would advise as to the date that judgment would be handed down.[25]
[25] Transcript 28 July 2020, p.157 lines 7–10.
THE REASONS OF THE PRIMARY JUDGE
The reasons the primary judge gave for making the undefended hearing order are contained at [1] and [54]–[71] of the reasons for judgment.
The primary judge discussed some of what occurred during the first two days of the hearing.
Importantly, the primary judge makes the following findings:
57.Part of the Court’s difficulty, and that of the other parties’ in hearing the husband, was the husband being observed to be placing his hand in front of his face; not talking at the screen; not leaning in to the screen and microphone where necessary; and otherwise not speaking clearly.
…
60. The husband’s conduct in the running of the proceeding at trial was conduct which disrupted the trial on numerous occasions causing delay and at times, an almost complete inability to progress the trial. His conduct was a deliberate frustrating of the trial itself…
…
61. In cross-examination of him by counsel for the wife, the husband regularly provided non-responsive answers. He rambled, was sarcastic, obnoxious and belligerent. He appeared not to be sober. He constantly spoke over others in the courtroom. His longstanding issues of excessive consumption of alcohol and abuse of it appeared to impact his participation at the trial. The husband however, denied being under the influence of alcohol and asserted he had the necessary capacity to participate in the trial. He refused to undergo a breath analysis and provide the results of same to the Court.
62. The husband repeatedly failed to comply with the directions of the Court. He was on occasion offensive in his commentary and his behaviour, and so inappropriate as to compromise counsel for the wife’s capacity to cross-examine him and to be on occasion, contemptuous of the proceeding.
(Footnotes omitted)
The primary judge described what led up to her Honour reaching a conclusion that the husband had abandoned the proceedings:
63.On the second day of the hearing and before the luncheon adjournment, counsel for the wife commenced to cross-examine the husband about the property orders sought by the parties. The husband then disconnected his telephone audio link (his earlier attempts to connect via the Microsoft Teams platform having again been unsuccessful) without notice to the Court or the parties. The Court offered the husband the opportunity to continue with the trial. His offices were telephoned. The husband indicated when he came on the line that he wished to continue with the proceeding but not with the audio link. He said of his inability to connect via Microsoft Teams that “… I had to pick up the folder and put it on my computer, it pulled out my power cord.” As requested by the husband, the Court again reconnected the husband to the Microsoft Teams platform and waited for him to appear on the camera of his video link and to speak into the microphone of his audio link. The husband did not appear by either video or audio. He was requested by the Court to please turn on his microphone and the camera. The husband did not do so. That means of continuing the trial was rendered unavailable by virtue of the husband’s actions. The Court again telephoned his [business premises] to enable the husband to proceed to participate in the trial by the means earlier agreed to by the husband, namely via the audio link connection to his office. On being re-joined to the proceeding in this manner, a manner satisfactory to the husband on the preceding day, the husband, instead of replying to the question asked by counsel for the wife in cross-examination, and being the earlier first question in respect of the property orders sought (which the husband earlier failed to answer, instead disconnecting from the proceeding) the husband said “is it the case that the only links in are audio by both opposing counsel and myself.” The husband was advised by the Court that the other two parties were connected by the Microsoft Teams link and he was connected by telephone link. The husband then disconnected his phone and abandoned the proceeding.
(Footnotes omitted)
In respect of the husband’s attempt to rejoin the Teams hearing through his computer during the ICL’s submissions, the primary judge said:
65.The husband thereafter sought to re-join the proceeding through Microsoft Teams. The Court had already indicated to the husband that he would not be heard at the trial in that manner at that time. The husband had been given numerous opportunities to participate in the proceeding. The matter was by the time of him seeking to re-join the proceeding, already proceeding undefended.
(Footnote omitted)
By way of additional reasons, the primary judge refers to the direction in s 97(3) of the Act and the principles for conducting child-related proceedings set out in s 69ZN(7) of the Act.
The primary judge made the following findings:
68.The husband’s conduct in the running of the trial was conduct that became increasingly, to the point of being completely, out of control. The husband’s conduct precluded the ordinary running of the trial. The proceeding commenced approximately two years and nine months ago. Throughout that period of time the strain of the proceeding on both the husband and wife has been, and remains, obvious. The proceeding has been emotionally harmful to the wife, and on the husband’s evidence, it has aggravated his relapse into alcoholism. The continuation of the proceeding is also financially disastrous for the parties, and in particular, the wife who has incurred significant legal costs over time.
The primary judge referred to previous findings made by a judge of the Federal Circuit Court who was hearing the matter, relating to the husband’s unconvincing explanations for failure to comply with orders.
The primary judge concluded:
70.The conduct of litigation before it is an important matter for the Court. Not only should one party not be prejudiced by the conduct of the other, but all other litigants who wish to come before the Court must not be prejudiced in their ability to do so.
71.The best interests of the children is the paramount consideration for the Court. This ongoing proceeding raises the risk to them of both further emotional and physical harm befalling them whilst in the care of their father. Their safety is at risk and it is clear the ongoing nature of the litigation produces in the husband an aggressive and combative response which fails to promote the children’s best interests.
It is appropriate to note at this point that the only factual errors which the husband challenged in his grounds of appeal are the primary judge’s findings at [1], [7] and [63] that the husband had “abandoned” the proceedings (Ground 1(a)) and the primary judge’s finding at [60] that the husband had consciously delayed and disrupted the proceedings (Ground 10). Whilst not the subject of any ground of appeal, the husband also in his Summary of Argument challenges the finding by the primary judge at [61] that the husband appeared not to be sober.
THE UNDEFENDED HEARING
The Explanatory Guide to the 2004 Rules (published along with the rules but not part of the rules) provided the following explanation:
Undefended basis
The court may order that a hearing or trial may proceed, because of the respondent’s failure to comply with a rule or order if a response has not been filed. The court may make the order set out in the application on being satisfied by evidence that the order should be made.
This is not an exhaustive or binding definition. In an undefended hearing, the court has the discretion as to whether regard is had to part or all of the evidence of the excluded party (Tate v Tate (2000) FLC 93-047 at [95] and [96]). In this case the primary judge did not proceed as if the husband had not filed a response. Her Honour referred to the husband’s written evidence and outline of submissions at [6] and concluded:
7.The husband abandoned the proceeding after the closing of the wife’s case and whilst he was being cross-examined by counsel for the wife. None of the affidavit evidence of the witnesses upon which he relied can be given any, or any significant, weight. They were not made available by the husband for cross-examination by the other parties. Likewise, the husband did not permit his evidence to be challenged as to property matters and thus such evidence is given little or no weight.
GROUNDS OF APPEAL
Whilst the husband’s appeal is against the final parenting orders and property settlement order made 10 September 2020, the challenges in the Amended Notice of Appeal specifically relating to those orders were abandoned and this appeal entirely depends upon the husband’s challenge to the undefended hearing order. The husband also abandoned Ground 3 which was a general complaint that the primary judge failed to afford the husband procedural fairness (whilst maintaining the specific complaint in relation to the undefended hearing order).
The grounds which remain assert that the primary judge erred when making the undefended hearing order because:
(a)The husband was not afforded procedural fairness (Grounds 1(c) and 4);
(b)The primary judge erred when finding that the husband was not actively participating in the hearing (that is the primary judge erred by finding that the husband had abandoned the proceedings) (Ground 1(a));
(c)The primary judge failed to take into account that the husband was actively trying to reconnect to Teams when technical difficulties were encountered (Ground 1(b));
(d)The husband’s technological difficulties were not considered (Ground 2);
(e)Alternatively, the husband’s technological difficulties were not given sufficient weight (Ground 2);
(f)The reasons for judgment were in error (Ground 10); and
(g)The reasons for judgment were inadequate (Ground 10).
The amended grounds of appeal do not seek leave to appeal the undefended hearing order per se. However, on an appeal from the final order, an appellate court can correct an interlocutory order which affected the final result. As the High Court made clear in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 483 (per Gaudron, McHugh and Hayne JJ), “[t]o adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings”. The appeal before us proceeded on the basis that the husband was free to challenge the interlocutory undefended hearing order without requiring leave to do so.
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.
Whilst statements made by the husband in both affidavits would leave open the possibility that somebody other than the husband disconnected the telephone call, the husband’s further speculation in subparagraph 11(k) of the second affidavit is tacit acceptance that he was responsible for that disconnection. There can be no question that the husband’s attendance at the hearing by audio link on a landline between the husband’s office and the Court was terminated by the action of the husband. This is the third occasion the husband asserts he was inadvertently disconnected from the hearing as a result of dislodged wiring at his end. On this third occasion however, the speculation was to the dislodgment of a fixed landline in his own office and him not being aware of it happening. We find this evidence inherently improbable, particularly when weighed against the compelling circumstantial evidence which was before the primary judge.
We are not satisfied that the further evidence the husband asks us to receive either allows us to conclude that her Honour’s finding that the husband had abandoned the proceedings, or that the order which flowed from it, was erroneous.
Accordingly the husband’s Amended Application in the Appeal to adduce further evidence will be dismissed.
Was the primary judge entitled to find that the husband had abandoned the proceedings? Ground 1(a)
It is first convenient to deal with the husband’s challenge to the primary judge’s finding at [1], [7] and [63] that the husband abandoned the proceedings.
This is an appeal arising from a discretionary judgment. As such, the well-known passages from House v The King (1936) 55 CLR 499 are applicable.
An appellate court ought to be cautious to interfere with the primary judge’s findings, particularly in relation to matters of procedure and the conduct of the hearing (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor (1981) 148 CLR 170 at 177).
In Gronow v Gronow (1979) 144 CLR 513 (“Gronow”), Stephen J at 519–520 said:
… it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
A close reading of the transcript of day one and day two, discloses the extensive nature of the husband’s disruptive conduct during the trial. The primary judge had the advantage of hearing the husband for significant parts of both days, despite the occasions when there was difficulties in doing so.
The husband does not challenge, by any ground of appeal, the primary judge’s description of his behaviour during the hearing, and at the hearing of the appeal, counsel for the husband conceded that the behaviour was “troubling” and made “no excuse for it”.[26]
[26] Transcript of the appeal hearing 29 April 2021, p.15 lines 7–8 and p.16 lines 38–40.
The primary judge found that upon the re-establishing of an effective audio link to the husband via his business’ telephone landline, the husband inquired whether all the parties were appearing by telephone link only. Upon being advised that he was, but the remaining parties would continue by video and audio, the connection to his landline was terminated.
The husband had the strong view that the primary judge was actually biased against him and believed he was being unfairly prejudiced by the direction, which is not challenged by any ground of appeal, that he only participate by audio link. He desired that he be seen and that he could see those participating.
The husband on multiple occasions before this moment of disconnection attempted to rejoin the video connection on Teams. Leading up to this moment, his behaviour had become increasingly sarcastic, obnoxious and belligerent. The primary judge found he appeared not to be sober.
The circumstances leading up to and particularly those immediately before the moment the husband left the hearing, provide powerful circumstantial evidence that the termination of the husband’s attendance at the hearing was the result of a deliberate act by him.
The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists (Carr v Baker (1936) 36 SR (NSW) 301 at 306 per Jordan CJ cited by Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [86]). The test is whether, on the basis of the primary facts, it is reasonable to draw the inference (see Luxton v Vines (1952) 85 CLR 352 at 358; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5).
The primary judge drew an inference that the husband had abandoned the proceedings. It was reasonable for the primary judge to draw that inference given the undisputed circumstances that had led up to and immediately preceded the husband disconnecting the audio link into the hearing.
The primary judge’s finding was subsequently fortified by the fact that the husband had used a method of rejoining the hearing that he had been directed by the primary judge not to use.
The primary judge was more than entitled to find the husband had abandoned the proceedings and Ground 1(a) fails.
Did the primary judge fail to take into account the husband was actively trying to rejoin Teams? (Ground 1(b))
Ground 1(b) asserts that the primary judge erred in continuing the hearing without the husband’s participation after he had actively tried to join Teams via video connection on his computer when technical difficulties were encountered.
As recorded above, the primary judge, when referring to the husband’s attempt to rejoin the proceedings through Teams on his computer, noted that the Court had already indicated to him that he would not be heard at the trial in that manner at that time, and that by the time he made that attempt, the proceedings were already proceeding undefended (at [65]).
The husband was present at the time the direction was made for him to attend via telephone connection and was aware of it.[27] He was subsequently contacted by telephone. His question to the judge inquiring as to whether he alone appeared by telephone is demonstrative of his awareness of the ruling.
[27] Transcript 28 July 2020, p.136 line 5.
No ground challenges the primary judge’s direction that the husband’s continued participation in the hearing proceed only by way of audio link. Given what had taken place on day one and day two prior to that direction being made, no such challenge would have been viable in any event.
The husband’s attempt to rejoin Teams without using his landline was at a time after he had abandoned the proceedings; after an order had been made that the trial proceed without his participation; and after the evidence had concluded and submissions commenced. The primary judge did not err in continuing the hearing without the husband after he had attempted to rejoin the hearing.
There is no merit in Ground 1(b).
Did the primary judge fail to consider or give insufficient weight to the technological difficulties suffered by the husband, the Court, the wife and the ICL? (Ground 2)
By ordering the matter proceed on an undefended basis, the husband asserts the primary judge failed to consider or failed to adequately consider or give sufficient weight to the technological difficulties suffered by the husband, the Court and the other parties.
So far as this submission asserts that all parties suffered technological difficulties, a close and fair reading of the transcript discloses that any technological difficulties that the Court, the wife or the ICL had from time to time with Teams were minor, particularly when compared to those arising out of the husband’s use of the technology.
There is no basis to assert that the primary judge failed to consider the husband’s technological difficulties when using Teams. The primary judge discussed them in some detail at [54]–[59], including some commentary as to the part the husband was playing in decreasing the quality of his audio feed on Teams.
The difficulties with the husband’s use of Teams on his computer was why the primary judge proceeded with a landline audio feed on the afternoon of the first day of the trial (without any technological difficulty) and ultimately had made a direction on the second day that the husband’s participation again proceed in that manner.
The husband’s complaint as to the weight the primary judge gave the difficulties he was having with Teams, faces the well-known obstacles which the husband fails to surmount (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow at 518–520; CDJ & VAJ at 231–232).
There is no merit in Ground 2.
Were the primary judge’s reasons for the undefended order wrong, in error and inadequate? (Ground 10)
The primary complaint under this ground as developed in the husband’s Summary of Argument filed 18 March 2021 relates to the finding of fact to the effect that the husband had consciously delayed and disrupted the proceedings (at [60]). In reaching that assessment, the primary judge had the advantage of observing the husband during the not insignificant periods of time when the video feed was operative and of extensively hearing the husband, despite the difficulties from time to time with his audio feed.
It was well open to the primary judge to make this finding, and her Honour’s reasons adequately explain why she did so. It is hard to conceive that any other finding is possible.
In so far as this ground asserts more generally that the primary judge’s reasons for making the undefended hearing order were inadequate, we reject that; her Honour’s reasons enable the parties to identify the basis upon which she made that order (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279).
There is no merit in Ground 10.
Did the primary judge err in finding the husband appeared not to be sober and that excessive consumption of alcohol appeared to impact his participation at the trial?
Whilst not referred to in any ground of appeal, at paragraph 8 of the husband’s Summary of Argument, he asserts the primary judge erred in making the inference that he was under the influence of alcohol during the hearing, and if so, was not capable of participating in the hearing due to this influence.
The primary judge raised with the husband her perception that the husband might be affected by alcohol:[28]
HER HONOUR: [The husband], are you ‑ ‑ ‑?
[THE HUSBAND]: What’s your question?
HER HONOUR: Are you drunk?
[THE HUSBAND]: No. What’s the question?
HER HONOUR: You are under oath. Are you drunk?
[THE HUSBAND]: No.
[28] Transcript 28 July 2020, p.127 lines 22–26.
Her Honour subsequently referred to her doubts about the husband’s sobriety.[29] Counsel for the wife cross-examined the husband in relation to his current sobriety and his willingness to undertake a breath test after court on the first day to demonstrate he was sober. The ICL submitted that the husband’s course of conduct may have been as a result of his alcohol consumption.[30]
[29] Transcript 28 July 2020, p.131 lines 30–31.
[30] Transcript 28 July 2020, p.138 line 20.
The primary judge found at [61] that the husband “appeared not to be sober” and:“[h]is longstanding issues of excessive consumption of alcohol and abuse of it appeared to impact his participation at the trial. The husband however, denied being under the influence of alcohol and asserted he had the necessary capacity to participate in the trial. He refused to undergo a breath analysis and provide the results of same to the Court”.
These findings were not made in a vacuum. In the context of considering the parenting applications, the primary judge discussed the evidence of the history of the husband’s alcoholism at some length (at [128]–[138]). As already indicated, the expert evidence was that the husband suffered from a moderate to severe Alcohol Dependence Disorder or an Alcohol Use Disorder.
The husband accepted that he had consumed alcohol during the first day of the trial[31]; had consumed alcohol (vodka) on the evening of the first day of the trial[32] and whilst he had breathalyser equipment routinely available to him, he failed or refused to make any arrangement to controvert the concerns raised by both the primary judge and counsel for the wife as to his sobriety.
[31] Transcript 27 July 2021, p.77 line 5.
[32] Transcript 27 July 2021, p.76 line 5.
The primary judge had the advantage of hearing, seeing and interacting with the husband over the two days of the hearing (Fox v Percy (2003) 214 CLR 118 at [23]).
The husband has failed to demonstrate the error asserted by him in paragraph 8 of his Summary of Argument.
Was the husband afforded procedural fairness when the primary judge made the undefended hearing order and subsequently refused to allow the husband to further participate in the hearing? (Grounds 1(c) and 4)
We now come to the central question in this appeal, the husband’s challenge that it was procedurally unfair to exclude him from further participation in the hearing after he had abandoned it.
The husband points to the fact that he was given no notice of the applications made by the wife and the ICL to so exclude him. The wife points to a procedural event on 8 October 2019 in which the primary judge adjourned the proceedings to the following day for the purposes of considering whether the wife would be granted leave to proceed on an undefended basis. On 9 October 2019 the wife was granted liberty to proceed on an undefended basis if the husband continued to fail to file material on which he relied. The wife also relies upon an implicit warning given to the husband by the trial judge at 11.55 am on day two.[33] We accept that the primary judge did not explicitly warn the husband that the hearing might continue without his participation and as a result, he was not given an opportunity to address her Honour about that possible outcome. Such a warning potentially could have been provided by the primary judge adjourning the proceedings and providing the husband a warning by email at his business address or by telephoning the landline, which the husband had disconnected, to explore whether he was prepared to reengage.
[33] Transcript 28 July, p.131 lines 28–35.
That however begs the question as to whether that lack of warning constituted procedural unfairness in the circumstances of this case.
We accept the wife’s submission that the husband’s abandonment of the proceedings was analogous to a party physically leaving a court room during a hearing. Once that election is made by a party, a party has forfeited their right to assert that they had not been provided an opportunity to be heard. There is no question that the husband was on notice that a hearing was taking place. A party has no right to expect if they abandon a hearing that it will not continue in their absence. It is a risk that the husband took when he abandoned his opportunity to be heard.
In Allesch v Maunz (2000) 203 CLR 172, Kirby J observed at [38]–[40]:
38.... Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39. Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40. Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted, the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
The husband in this case, for whatever reason, was not acting rationally in his own interests.
The husband further complains that it was procedurally unfair, once he had ultimately attempted to reconnect to Teams via his computer, for the primary judge to reject that overture. Having abandoned his right to be heard, a question for the primary judge was whether the husband should be granted the indulgence of her Honour revisiting the decision to proceed with the hearing in his absence.
This is tantamount to a party who had left a court room in the middle of a hearing, coming back to the door of the court room and seeking to re-enter. It might be that if a party abandons a hearing and subsequently cools down and seeks to be let back in, a primary judge will allow them to do so, if for no other reason than to avoid an appeal such as this one. However, that is a discretion to be exercised by a primary judge on the facts of an individual case. Here it is plain that the husband abandoning the hearing was but the final straw.
The husband knew that the primary judge had ruled that he was not to further participate using his computer to connect to Teams but only by his reliable landline. Whilst not a ground of appeal, the husband continued to complain before us of the disadvantage he suffered as a result of the primary judge’s direction he appear by audio only. The husband’s attempt to rejoin, in the way he did, was a continuation of a dismissive rejection of her Honour’s ruling.
Up until the time the husband abandoned the proceedings, the primary judge had demonstrated great tolerance of the husband’s disruptive and contemptuous behaviour, warning him about it on in excess of 16 occasions over the two days. The primary judge was justifiably not prepared to exercise her discretion in the husband’s favour to readmit him to the hearing, particularly in circumstances where the evidence had concluded and submissions had commenced.
When considering issues of procedural fairness, her Honour permissibly took into account the strain the two year and eight month history of the litigation had had on both parties and in particular the emotional harm to the wife (at [68]), the best interests of the children (at [71]) and the prejudice to other litigants waiting to have their case heard (at [70]).
The husband was not denied procedural fairness.
There is no merit in Grounds 1(c) and 4.
COSTS
The wife makes an application that the husband pay her costs on an indemnity basis, or in the alternative, costs in accordance with Sch 3 of the 2004 Rules (reflected in Sch 3 of the Federal Circuit and Family Court 2021 Rules (Cth)).
The husband opposes an order for indemnity costs.
The wife submits that given the husband’s contemptuous behaviour at the hearing before the primary judge, the appeal should not have been brought. That however is insufficient to attract indemnity costs in this appeal which has been tightly argued by the husband.
The husband concedes an order for party/party costs against him. In the wife’s schedule of costs, she claims a sum of $14,964 at scale but not all items are claimable on a party/party basis. We shall make a costs order requiring the husband to pay the wife’s costs in the sum of $13,000 within 28 days.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Aldridge & Watts. Associate:
Dated: 15 October 2021
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