FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Boman & Boman [2022] FedCFamC1A 55
Appeal from: Boman & Boman [2022] FedCFamC1F 93 Appeal number(s): NAA 43 of 2022 File number(s): DGC 1412 of 2019 Judgment of: AUSTIN J Date of judgment: 12 April 2022 Catchwords: FAMILY LAW – APPEAL – Practice and Procedure – Summary dismissal – Where the appeal was listed to afford the father the opportunity to be heard about why the appeal should not be summarily dismissed or the incompetent grounds struck out – Where the father appeals from orders in respect of the parties’ children and the division of their property – Procedural fairness – Where no procedural unfairness can be caused by an interlocutory order which is correctly made – Exercise of discretion – Where the father makes bare complaints about the result – Findings of fact – Where the father’s complaints are baseless as the father chose to abandon the proceedings and the primary judge accepted the mother’s unchallenged evidence – Where the appeal does not have any reasonable prospect of success – Appeal summarily dismissed – Application in an Appeal – Provision of transcript – Where the father’s application for relief is now superfluous – Application dismissed – Costs – Where the mother sought summary dismissal of the appeal and if successful an order for the father to pay her costs – Where the appeal was listed at the Court’s own motion, not on the application of the mother – Application dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 102NA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.13, 8.14
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Number of paragraphs: 52 Date of hearing: 12 April 2022 Place: Newcastle (via video link) The Appellant: Litigant in person Counsel for the Respondent: Mr O’Grady Solicitor for the Respondent: Hosking Lawyers The Independent Children's Lawyer: Did not participate ORDERS
NAA 43 of 2022
DGC 1412 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BOMAN
Appellant
AND: MS BOMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 APRIL 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 March 2022 is dismissed.
2.The Amended Notice of Appeal filed on 15 March 2022 is dismissed.
3.The respondent’s application for costs is dismissed.
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)),…
Continue reading Boman & Boman
Sign in free to access the full text
Details
- AGLC
- Boman & Boman [2022] FedCFamC1A 55
- Case
- [2022] FedCFamC1A 55
- Decision Date
CaseChat Overview and Summary
The father appealed against orders made by the primary judge in respect of the parties' children and the division of their property, but the appeal was ultimately dismissed by the appellate court. The father abandoned the proceedings at the trial, resulting in unchallenged evidence being accepted by the primary judge. The father's complaints about the findings of fact were baseless, as he chose to abandon the proceedings and the primary judge accepted the mother's unchallenged evidence. The appeal did not have any reasonable prospect of success, and the interlocutory application was dismissed. The father's application for relief was now superfluous, and the application was dismissed. The mother sought summary dismissal of the appeal and, if successful, an order for the father to pay her costs, but the application was dismissed as the appeal was listed at the Court's own motion, not on the application of the mother. No order as to costs was made.
The primary judge made findings of fact based on the unchallenged evidence presented in the case. The father's complaints about the findings of fact were baseless, as he chose to abandon the proceedings and the primary judge accepted the mother's unchallenged evidence. The father's attempts to benignly explain or mitigate such facts and circumstances do not detract from their accuracy. The primary judge was correct to find the test results produced by the father were not compliant with the stringent conditions imposed by the orders made in October 2019 and July 2021. The primary judge's observations with which the father took issue were indisputably correct. The father's attempts to benignly explain or mitigate such facts and circumstances do not detract from their accuracy. The mother was obviously unable to give direct evidence of the father's continuing illicit drug use after their separation, but she and the Independent Children’s Lawyer were concerned about his failure to corroborate his assertion of abstinence, as it was not convincingly verified by any recent drug test results and was quite inconsistent with admissions he made to his medical providers and the Family Consultant. The primary judge therefore shared their concerns. The mother’s unchallenged evidence of the father’s perpetration of family violence was accepted. In the upshot, the primary judge found the father posed a risk of harm to the children, but noted how a different finding might have been available had the father not chosen to abandon the proceedings and thereby prevented comprehensive evaluation of the evidence. Consequently, orders were made for the mother to have sole parental responsibility for the children and for them to live with her. The orders made provision for the children to only spend time with the father for two hours each alternate weekend, subject to professional supervision at his cost, and for the children to communicate with the father electronically for 30 minutes each intervening weekend.
The primary judge made findings of fact based on the unchallenged evidence presented in the case. The father's complaints about the findings of fact were baseless, as he chose to abandon the proceedings and the primary judge accepted the mother's unchallenged evidence. The father's attempts to benignly explain or mitigate such facts and circumstances do not detract from their accuracy. The primary judge was correct to find the test results produced by the father were not compliant with the stringent conditions imposed by the orders made in October 2019 and July 2021. The primary judge's observations with which the father took issue were indisputably correct. The father's attempts to benignly explain or mitigate such facts and circumstances do not detract from their accuracy. The mother was obviously unable to give direct evidence of the father's continuing illicit drug use after their separation, but she and the Independent Children’s Lawyer were concerned about his failure to corroborate his assertion of abstinence, as it was not convincingly verified by any recent drug test results and was quite inconsistent with admissions he made to his medical providers and the Family Consultant. The primary judge therefore shared their concerns. The mother’s unchallenged evidence of the father’s perpetration of family violence was accepted. In the upshot, the primary judge found the father posed a risk of harm to the children, but noted how a different finding might have been available had the father not chosen to abandon the proceedings and thereby prevented comprehensive evaluation of the evidence. Consequently, orders were made for the mother to have sole parental responsibility for the children and for them to live with her. The orders made provision for the children to only spend time with the father for two hours each alternate weekend, subject to professional supervision at his cost, and for the children to communicate with the father electronically for 30 minutes each intervening weekend.
Orders
Orders of the court
NAA 43 of 2022
DGC 1412 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR BOMAN
Appellant
AND:
MS BOMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 APRIL 2022
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 8 March 2022 is dismissed.
2. The Amended Notice of Appeal filed on 15 March 2022 is dismissed.
3. The respondent’s application for costs is dismissed.
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).
Background
Background to the litigation
After such notice was sent to the parties, the father amended the grounds of his appeal and filed written submissions to elaborate the amended grounds but, for the reasons which follow, the appeal in its amended form must be summarily dismissed and so the interlocutory application is also dismissed.Background The parties commenced cohabitation in late 2009, married in late 2015, and finally separated in late 2018. Proceedings were commenced by the father in May 2019. He initially only sought parenting orders under Pt VII of the Act but, once the mother joined issue, the proceedings expanded to include applications for financial relief under Pt VIII of the Act. In July 2021, the trial of the proceedings was fixed to commence in December 2021. The trial occurred over two days (6 and 10 December 2021). It had been anticipated the trial would last longer, but the father abandoned the trial at lunchtime on the second day in the midst of his cross-examination. In the absence of any further cross-examination of any witness and in view of the broad agreement between the mother and the Independent Children’s Lawyer (“the ICL”) about the form of orders needed to resolve the parenting dispute, the trial continued on an undefended basis and was concluded within two days. The central theme of the parenting dispute was the father’s alleged unsuitability for any unsupervised care of the children, principally on account of his long history of illicit drug use and his unstable psychological state, about which there was considerable factual conflict. As the primary judge remarked on several occasions in the reasons for judgment, the father’s voluntary abandonment of the proceedings denied the opportunity for his evidence to be fully tested by the mother and the ICL, but also resulted in the mother’s evidence being unchallenged (at [34]–[35], [37], [47], [77], [90], [94] and [97]). The mother was obviously unable to give direct evidence of the father’s continuing illicit drug use after their separation, but she and the ICL were concerned about his failure to corroborate his assertion of abstinence, as it was not convincingly verified by any recent drug test results and was quite inconsistent with admissions he made to his medical providers and the Family Consultant. The primary judge therefore shared their concerns (at [102] and [111]). The mother’s unchallenged evidence of the father’s perpetration of family violence was accepted (at [103]). In the upshot, the primary judge found the father posed a risk of harm to the children (at [113] and [120]), but noted how a different finding might have been available had the father not chosen to abandon the proceedings and thereby prevented comprehensive evaluation of the evidence (at [51], [94] and [113]). Consequently, orders were made for the mother to have sole parental responsibility for the children and for them to live with her. The orders made provision for the children to only spend time with the father for two hours each alternate weekend, subject to professional supervision at his cost, and for the children to communicate with the father electronically for 30 minutes each intervening weekend.
Evidence
Evidence Before The Court
The claims of discretionary error have no reasonable prospects of success.Findings unsupported by evidence Of course, in an appeal from a discretionary judgment, the demonstration of an incorrect factual finding which is material to the exercise of discretion establishes appealable error and vitiates the judgment (House v The King (1936) 55 CLR 499 at 504–505). But findings are not incorrect merely because they depend upon evidence which an appellant regards to be false or inaccurate. Very often, material findings are made in reliance upon evidence, the truth and accuracy of which was volubly disputed. It is an indispensable feature of judicial duty to make factual findings to resolve material issues in the midst of highly conflicted evidence. The father’s grounds of appeal mistake two different things: first, findings of fact which are without any evidentiary foundation; and secondly, findings of fact based on evidence which he disputes. This ground of appeal avers the first complaint, but is particularised by assertions which are redolent of the second complaint. The father chose to abandon the proceedings and so, as was open and proper, the primary judge accepted the mother’s unchallenged evidence, particularly when his partial cross-examination was enough for the primary judge to form an adverse view about his credibility (at [35] and [38]). In any event, the observations of the primary judge with which the father took issue (at [6], [11] and [12]) were indisputably correct. The father’s attempts to benignly explain or mitigate such facts and circumstances do not detract from their accuracy. The ICL did file and rely upon an affidavit deposing to the father’s failure to submit to random drug testing in accordance with eight requests she made of him in the period between October 2019 and June 2020 (at [6]). Orders were made by the Chief Justice on 19 July 2021 requiring the father to comply with the existing drug-testing orders made in October 2019, but enabling him to propose their variation to the mother (at [11]). Nor was there any expert evidence of the father undertaking drug testing in the manner required by the interim court orders, nor evidence of him having submitted to psychological evaluation by an expert as required by interim court orders (at [12]). It is, however, worthwhile correcting the father’s misunderstanding about the primary judge’s finding in respect of his failure to undertake drug testing as required by court orders. He did indeed adduce some evidence ostensibly demonstrating his negative results from drug tests performed within confined periods in 2019 and 2021 (at [75] and [82]). However, the primary judge’s point was that those drug screens were not done in accordance with conditions imposed by the orders – not that they were not done at all. The tests were not done randomly upon request by the ICL, nor did the certificates prove the father’s supervised provision of bodily samples, as the operable orders required (at [6]–[12], [56], [75], [77], [84]–[85] and [111]). The primary judge was correct to find the test results produced by the father were not compliant with the stringent conditions imposed by the orders made in October 2019 and July 2021.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.