Boman & Boman
[2022] FedCFamC1A 55
•12 April 2022
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
House v The King (1936) 55 CLR 499; [1936] HCA 40
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
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)), 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 Boman & Boman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By way of an Amended Notice of Appeal filed on 15 March 2022, the father appeals from orders made on 1 March 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 1) to determine his dispute with the mother in respect of their children and the division of their property under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
Written notice was sent to the parties by the Appeal Registrar on 11 March 2022 confirming the appeal was listed for two purposes: first, to hear the father about why the appeal should not be summarily dismissed, or alternatively, the incompetent grounds of appeal struck out; and secondly, if the appeal remains on foot in some form or other, to hear and determine the father’s interlocutory application for the Court to bear the cost of obtaining the transcript of the primary hearing for use in the appeal.
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.
In respect of the property settlement, orders were made for the father to transfer his interest in the former family home to the mother in return for a lump sum payment of $106,000 and his protection from any liability in respect of the property. Otherwise, the parties individually retained their existing property. Those orders reflected a division of matrimonial property, assessed to have a net value of $424,000 (at [136]), in respective shares of 75 per cent to the mother and 25 per cent to the father.
The appeal
The father’s amended grounds of appeal comprise a narrative covering eight typewritten pages, which are not repeated here. However, it is evident that he essentially makes four complaints, though each is elaborated in various different ways.
The first complaint is that the father was denied procedural fairness.
The complaint is particularised by assertions that:
(a)the primary judge denied the father the right to represent himself at trial; and
(b)the primary judge restricted the father to the use of only four of eight affidavits he filed in the proceedings.
The second complaint is that the primary judge fell into discretionary error – either by taking irrelevant considerations into account or by failing to take material considerations into account.
The complaint is particularised by assertions that the primary judge:
(a)failed to take into account the circumstances under which he failed to submit to a psychological assessment by a single expert witness and was thereby in breach of earlier procedural orders made in October 2019;
(b)failed to take into account that interim orders made in August 2020, which restrained the father from communicating with lawyers and other professionals involved in the litigation, were due to his “turbulent relationship” with the mother’s solicitor; and
(c)failed to take into account the father’s “detailed information regarding [his] contributions” in respect of the property settlement dispute.
The third complaint is that the primary judge made findings that were not supported by evidence, specifically being these:
(a)the ICL filed and relied upon an affidavit deposing to the father’s failure to submit to random drug testing in accordance with eight requests she made of him pursuant to operable interim orders in the period between October 2019 and June 2020 (at [6]);
(b)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 make a written submission to the mother about the manner in which the existing drug-testing orders should be varied (at [11]); and
(c)at the trial, there was no expert evidence of the father undertaking drug testing in the manner required by the interim court orders, nor was there any evidence of the father having submitted to psychological evaluation by an expert as required by interim court orders (at [3]–[4] and [12]).
The fourth complaint is that the primary judge acted upon a “wrong principle of law”, but the manner in which it is particularised tends to obscure its meaning.
Summary dismissal
The Federal Circuit and Family Court of Australia Act 2021 (Cth) permits the summary dismissal of an appeal if it has no reasonable prospect of success, even if it is not hopeless or bound to fail (ss 46(2) and 46(3)), which dismissal power may be exercised by a single judge (ss 32(3)(b) and 32(5)).
The pertinent question therefore is: does the appeal have reasonable prospects of success?
The appeal does not have any reasonable prospect of success and so should be summarily dismissed. To demonstrate why that is so, the four grounds should be addressed separately.
Denial of procedural fairness
In both July 2019 and July 2021, long before the trial started in December 2021, different judicial officers made notations to procedural orders as to how s 102NA of the Act would operate to constrain the parties’ cross-examination at trial (at [14]). There can be no doubt about that because the father admitted he had been convicted of breaching a State intervention order made for the mother’s protection (at [59] and [64]), in which event s 102NA of the Act automatically prevented the parties from personally cross-examining one another.
At the commencement of the trial on 6 December 2021, the father was represented by counsel, and not merely for the confined purpose of cross-examining the mother (at [15] and [24]–[25]). After some prevarication by the father during the first day of trial about whether to do so, he terminated that counsel’s retainer after the end of the first day (at [21]–[23]). On each occasion during the first day when the father was informed he may represent himself, he was forewarned that s 102NA of the Act would then preclude his cross-examination of the mother, which evidently dissuaded him from terminating his counsel’s retainer during that day.
At the start of the second day of trial on 10 December 2021, the father was represented by different counsel (at [28]). Upon resumption of the trial after the luncheon adjournment on the second day, the father’s counsel announced that his retainer had been terminated and the father intended taking no further part in the proceedings, in which event the trial proceeded to its conclusion on an undefended basis (at [30]–[32]).
The father’s contention in the appeal that he was denied the right to represent himself at trial is therefore false. He was able to do so, but on the proviso he understood he could not personally cross-examine the mother.
Quite properly, the primary judge refused to allow the father to partially represent himself while he still retained counsel (at [22]–[25]) and, knowing he was put to his election of either being self-represented or legally represented, the father elected the latter option and retained two counsel in succession. Once the father sacked the second counsel, his decision not to represent himself was entirely voluntary.
It is a fundamental principle of natural justice that parties should be afforded a reasonable opportunity of appearing and presenting their case. But being afforded the opportunity and making use of it are different things. If a party eschews the given opportunity to be heard by departing the Court without good reason in the knowledge that the trial may continue, as was the case here, there is no miscarriage of justice by the continuation of the trial in the absence of further participation by that party. The court is not required to indefinitely delay the proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182–186 and 189–191; Taylor v Taylor (1979) 143 CLR 1 at 4).
As for the evidence upon which the father relied, despite earlier procedural orders and rr 8.13 and 8.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) confining him to reliance upon one affidavit prepared for the trial, by reason of him having been formerly self-represented, the primary judge foreshadowed a willingness to allow his reliance upon more. The father’s first counsel then selected four of the seven affidavits he had hitherto filed as being necessary evidence, together with a fifth affidavit which was filed just days before trial (at [19]).
At the commencement of the second day of trial, the father’s second counsel confirmed the affidavit material upon which the father relied was the same as identified on the first day (at [28]). Over the luncheon adjournment on the second day, the father directly emailed the Court indicating his wish to rely upon further affidavits, not identified by either of his counsel, which the primary judge disallowed (at [30]). That decision prompted the father’s withdrawal.
While the father was restricted to the use of five (not four) of the eight affidavits he filed throughout the proceedings, he had already been granted an indulgence to rely upon that many. The primary judge’s refusal to allow his reliance upon any more, particularly after the trial had commenced and he was already under cross-examination, was an orthodox interlocutory ruling with which the father could not demonstrate any error. It is axiomatic that no procedural unfairness can be caused by an interlocutory order which is correctly made.
The father complains that his barristers “did not know which affidavits to include in the court diary and consequently chose the wrong ones”, but that complaint has no bearing upon the procedural fairness of the trial conducted by the primary judge. His Honour took into account the evidentiary material identified by the father’s legal representatives, as was proper.
The father’s claims of his denial of procedural fairness have no credence and have no reasonable prospect of success.
Discretionary error
The primary judge observed that, in October 2019, orders were made with the father’s consent which required him to attend upon a single expert witness “to undergo psychological evaluation and parental capacity risk assessment” (at [4]). That was indisputably correct.
The father’s complaint is that the supposed need for such assessment was “irrelevant information” from nearly three years before. The father’s negotiations with the ICL are not to the point. Nor are his misgivings about the order. The father is bound to accept he failed to attend upon the single expert, as was ordered with his consent. The evidence he alleges was not taken into account was contained within his affidavits dated “10th November 2021” and “17th November 2021”, but he was permitted to rely upon both of those affidavits and they were taken into account by the primary judge (at [19]).
The primary judge observed that, in August 2020, orders were made restraining the father from communicating with lawyers and other professionals involved in the proceedings (at [6]). That was also indisputably correct.
The father acknowledges the order was made because of his “turbulent relationship” with the mother’s solicitor, but his perception that such turbulence was the solicitor’s fault is immaterial. The father does not identify what material evidence was supposedly overlooked by the primary judge when reciting the incontrovertible fact that such an injunction was made against him.
The final complaint about the primary judge’s failure to take into account the father’s “detailed information regarding [his] contributions” in respect of the property settlement dispute amounts to no more than that the primary judge assessed his entitlement at 25 per cent of the property when he had sought 45 per cent. It is a bare complaint about the result; not one of failure to take a material consideration into account.
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.
Moreover, the father’s evidence of his abstinence from illicit drug use for many years (at [74]) was quite inconsistent with his admissions to the Family Consultant (at [87]) and admissions he made to medical practitioners between 2006 and 2016 (at [99]–[101]).
The father’s complaint of findings being made by the primary judge which were not supported by the evidence is baseless and has no reasonable prospect of success.
Legal error
Without intending disrespect, the manner in which this ground of appeal is particularised in the Amended Notice of Appeal precludes any understanding of what it means. When given the chance, the father orally explained that it is a complaint that the mother still owes him $750 pursuant to the terms of Order 4 made on 19 July 2021 by the Chief Justice, requiring her to reimburse him for one-half the cost of a building report. The father contends the primary judge improperly dismissed his claim for that sum, even though no order was actually made to that effect. The father said the dismissal of his claim would be evident from the transcript.
This appeal does not lie from the orders made in July 2021; only those made in March 2022. Nonetheless, the mother’s counsel was impelled to concede that the order made in July 2021 was, in effect, a costs order with which the mother must comply and, further, it may be enforced against her. The pre-condition within the order for payment of the costs was admittedly fulfilled and so the mother remains indebted to the father for $750 if it has not already been paid.
Such liability under those former orders, however, does not have any reasonable prospect of sustaining the appeal from the orders made by the primary judge in March 2022.
Transcript
Since the appeal is summarily dismissed, the father’s interlocutory application for relief in relation to the provision of transcript for the appeal is superfluous and may also be dismissed.
Costs
The mother sought the summary dismissal of the appeal and, if successful, an order for the father to pay her party/party costs incurred in the appeal thus far, which she quantified at just over $7,000.
The application for costs is dismissed. The appeal was only filed a month ago and was listed on the Court’s own motion; not because the mother filed an interlocutory application seeking its summary dismissal. No persuasive reason was advanced for departure from the ordinary rule in s 117(1) of the Act, requiring the parties to pay his and her own costs of the proceedings.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 12 April 2022
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