BRADFORD & DONNELLAN
[2019] FamCAFC 59
•4 April 2019
FAMILY COURT OF AUSTRALIA
| BRADFORD & DONNELLAN | [2019] FamCAFC 59 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge ordered no contact of any kind between the children and the father – Where the mother has sole parental responsibility of the children – Where the father contends that the primary judge failed to take into account the Independent Children’s Lawyer (ICL) references to the mother’s evidence – Where in fact the ICL’s submissions were that the father’s evidence was not truthful – Where the father complains that the primary judge did not decide the matter in accordance with the parties’ application – Primary judge not bound by the parties’ proposals – Best interests of the children – Orders made in accordance with the submissions of the ICL – No force in the Grounds – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – Where the primary judge made orders dividing the total assets as to 67 per cent to the wife and 33 per cent to the father – Where the father contends the inclusion of a house he purchased as an asset of the parties – Where the father at trial failed to make any financial disclosure – Where the only evidence before the Court was the mother’s – Where the father challenges the primary judge’s refusal to call the paternal grandfather as witness – No affidavit filed by the father or paternal grandfather – Where the father contends that the mother’s receipt of Centrelink benefits were fraudulent – No evidence adduced in support of that claim by the father – No error established – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Further evidence – Where the father seeks to include evidence as to a mental disability – Where the purpose of this evidence was to demonstrate that the father was incapable of understanding the trial process – Where the father failed to mention his condition or bring this information during the trial – Where the father concedes that he failed to adjourn the proceedings at trial – Application dismissed – Where the mother filed an application to adduce further evidence rebutting the father’s application and to seek leave to issue subpoenas – Applications dismissed. FAMILY LAW – APPEAL – COSTS – Where the father was ordered to pay the costs of the mother and the total costs of the ICL – Where his Honour’s reasons for making the order are unchallenged – Where the father was ordered to pay the costs of the mother’s legal fees – No force to these challenges – Appeal dismissed – Where the ICL seeks an order for costs of the appeal – Costs order made in favour of the ICL against the father in relation to the appeal. |
| Family Law Act 1975 (Cth) |
| U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Mr Bradford |
| RESPONDENT: | Ms Donnellan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown Family Law |
| FILE NUMBER: | PAC | 4829 | of | 2015 |
| APPEAL NUMBER: | EA | 96 | of | 2018 |
| DATE DELIVERED: | 4 April 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Austin JJ |
| HEARING DATE: | 28 February 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 July 2018 |
| LOWER COURT MNC: | [2018] FCCA 1822 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Campbelltown Family Law |
Orders
The appeal against the orders of Judge Harman made on 9 July 2018 is dismissed.
The father’s application in an appeal to adduce further evidence filed on 5 November 2018 is dismissed.
The mother’s response to the father’s application to adduce further evidence filed on 22 February 2019 is dismissed.
The mother’s application in an appeal to adduce further evidence and issue a subpoena dated 27 November 2018 is dismissed.
The father to pay the costs of the Independent Children's Lawyer of and incidental to the appeal fixed in the sum of $5,181.00.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bradford & Donnellan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 96 of 2018
File Number: PAC 4829 of 2015
| Mr Bradford |
Appellant
and
| Ms Donnellan |
Respondent
and
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
On 9 July 2018 Judge Harman made final parenting and property adjustment orders between Ms Donnellan (“the mother”) and Mr Bradford (“the father”). Cost orders were also made against the father for the costs of the Independent Children’s Lawyer (“the ICL”) and the mother. By Notice of Appeal filed 16 July 2018 the father appeals these orders.
The mother and father were in a de facto relationship which commenced in about March 2010 and which concluded on 4 October 2013 when the mother moved into rental accommodation. The mother immigrated to Australia from Country C in June 2004 and the father immigrated to Australia from City D in 2005.
The parties have two children, X (born in 2011) and Y (born in 2012) who are subject to the proceedings. Upon separation the two children remained living with the mother. The mother also has a child from a previous relationship Mr T who was not subject to these proceedings.
The mother began proceedings on 1 October 2015 and sought property orders that the proceeds of the sale of the matrimonial home at Property B be paid to her together with 65 per cent of the value of all other assets. She further sought orders that each party retain all property in their respective possession, custody or control. The father in his amended response sought orders that the net proceeds of sale of the matrimonial home be divided equally and that each party retain all property in their respective possession, custody or control. In his amended response the father also sought parenting orders for equal shared parental responsibility of the children with the children to live with him and the mother on a week about arrangement.
The parties owned a home at Property B which was subject to a mortgage in their joint names. After separation the father remained living in the former matrimonial home and paid no outgoings on the property nor did he pay the mortgage instalments. As a result, some 18 months later the property was sold by the mortgagee and the sum remaining, $173,407 is held in the Supreme Court of New South Wales pending the resolution of the property proceedings. In addition to living in the home the father had possession of all assets of the relationship at the time of separation which, the primary judge found to be of significant value. After the parties separated the father purchased Property A of which he is the sole registered proprietor.
As the primary judge’s reasons reveal, the father made no financial disclosure, for example he declined to give the value of Property A or give any evidence as to its purchase. Further his Honour regarded such affidavit evidence as he did file to be wholly inadequate to enable the resolution of the issues.
In the result the primary judge found that the father had had the benefit of significant joint assets of the parties for which he had given no account. His Honour after considering the contributions of the mother and the matters to which s 75(2) of the Family Law Act (“the Act”) refer, ordered the mother to have the whole of the sum that remained from the sale of the matrimonial home. He further ordered each party to retain the assets each then had.
As to parenting, the primary judge ordered that the mother have sole parental responsibility for the children, that they both live with the mother and that the father spend no time with the children nor was he to communicate with the children or the mother.
Other orders were made which restrained the father from removing the children from the mother’s care or the care of any other person. Further orders were made restricting the father from removing the children from Australia as well as placing the children on the Airport Watch List.
Finally, the father was ordered to pay the costs of the proceedings of both the mother and the ICL in the sums of $11,607.50 and $7,031.50 respectively.
The father appeals those orders.
The Appeal
The father’s Notice of Appeal sets out 10 grounds of appeal which are repeated without explanation or submission in his Summary of Argument. The grounds of appeal, to say the least, are unclear and confusing and many of them are not proper grounds of appeal.
Ground 1
This ground contends that the primary judge gave his reasons based on the “unreliable” evidence of the mother. When the father was asked to address this ground at the appeal hearing he stated that the first part was about the “kids” as the ICL “didn’t talk to me” and secondly as to the financial aspect in relation to the evidence being unreliable and untrue. We do not understand what the challenge about the “kids” and the ICL means and the father made no submission in relation to this part of the ground.
As to the issue regarding financial evidence, its reliability and truthfulness, from what we understand the submission seems to be that the father disputes the primary judges’ findings as to his financial disclosure and challenges the primary judge’s reliance on the mother’s evidence.
The father challenged his Honour’s conclusion that Property A should be taken into consideration in determining what property order to make. The father argued on appeal, as he had during the trial, that the house and a car he purchased after separation were irrelevant to the property proceedings.
The father’s failure to make any financial disclosure was a matter which his Honour, quite correctly, considered very significant. His Honour noted at [252] that the mother’s evidence was the only evidence before the court and it was accepted by his Honour. The primary judge noted at [90] that “Mr [Bradford] not only has no evidence before the Court, but his failure to lead evidence irresistibly compels acceptance of Ms [Donnellan’s] evidence in these proceedings” and he further noted that there was no financial disclosure by the father and that the mother was put to the expense of issuing subpoenas and obtaining material.
The primary judge at [254] set out the property and assets to which the father had access since the parties separated and for which he had given no account.
His Honour set out the entirety of the father’s affidavit evidence as it related to issues of property settlement at [34 f)]:
f)Mr [Bradford] swore or affirmed an Affidavit on 8 March 2018, which Affidavit was filed 12 March 2018. That Affidavit in its totality comprises the following:
Request for witness for court hearing… my father… will give evidence about:
- parenting matter;
- financial matter.
The father on appeal argued that he told the primary judge that he had purchased Property A using his savings of $55,000, and he said he received money from his mother and father in the sums of US$10,000 and US$15,000.
Whether the father received these funds from his parents or not was not relevant to his Honour’s findings which concerned joint funds to which the father had exclusive access. In the result, in determining the assets of the parties and each of them, the primary judge included Property A but was unable to ascribe a value to it. The primary judge said:
280. All assets of substance which existed at separation, other than the proceeds of sale of the home, have been retained by Mr [Bradford]. In those circumstances, Mr [Bradford] has had the sole use and benefit of all assets since separation. Mr [Bradford] has also had sole control of information.
281. There is simply no evidence led by Mr [Bradford] with respect to the home at [Property A] purchased by him post-separation. That is not to provide benefit to Mr [Bradford] as a consequence of his aberrant approach towards these proceedings and his duty of disclosure. However, it is safer to work upon numbers that can be readily ascertained – indeed, largely corroborated through the evidence of Ms [Donnellan] – than to speculate completely. Whilst Burgoyne & Burgoyne et al permit an absence of caution, caution should not be thrown to the wind when a more cautious and predictable approach is available.
(Footnote omitted)
Whether or not the father contended that the mother’s evidence was unreliable, hers was the only evidence before the court and the primary judge considered it and, after consideration concluded that it should be accepted. It was open to the father to adduce evidence to support his contentions at trial but he did not. His Honour’s conclusions about the reliance on the mother’s evidence were entirely open to him.
As to his Honour including Property A as an asset of the parties or each of them to be considered in determining the property issue, while the father contended that that property was irrelevant to the proceedings he was, as his Honour correctly pointed out, incorrect.
There is no substance to this challenge.
Ground 2
This ground relates to the mother’s Centrelink records and the father’s assertions to the primary judge that in some way the mother’s receipt of those benefits were fraudulent. The gist of the ground, as it was argued on appeal, is that although both the father and the mother were asked by the ICL to authorise the issue of subpoenas to Centrelink for their records, the records were not produced and the father contended that his Honour made his determination without regard to those records.
His Honour referred to the mother’s receipt of a Centrelink benefit at [296] deciding that it was a benefit to which she was entitled.
He further said:
306. … During cross-examination, Mr [Bradford] went further, suggesting that he had believed that the children would need to live with him on the basis that it was his belief that Ms [Donnellan] would be prosecuted by Centrelink for fraud, apparently based upon a suggestion – although there is no evidence to support it – that Ms [Donnellan] had received benefits during the relationship to which she was not entitled. I make clear there is not a scintilla of evidence to support that position.
If the father wished to assert some wrongful conduct on the part of the mother in receiving those benefits, he was obliged to produce the evidence to support it. That the ICL did not obtain those documents does not absolve him from taking steps to support his own case as to his belief that the mother committed Centrelink fraud. He did not. He cannot now complain.
This ground is not made out.
Ground 3 and Ground 4
By Ground 3 the father complains that he was ordered to pay the whole of the ICL’s costs when, he said, the mother had agreed to pay one half of those costs. Ground 4 reflects his challenge to the primary judge’s order that he pay the mother’s legal costs of the proceedings.
As to the ICL’s costs, it is difficult to understand the gist of this ground other than it seems that the father complains that the ICL’s costs should have been paid by him and the mother.
When discussing the payment of the ICL’s fees during the first instance proceedings, the mother said that she could only contribute to the fees when she received the money held in the Supreme Court of New South Wales. The primary judge said:[1]
Well, I won’t take that, in the circumstances, as a concession of saying that you should pay it. I will just deal with that. I hear what you say, that you couldn’t pay it unless you had the money, but I won’t treat that, in the circumstances, as a concession by you that you should.
[1]Transcript of proceedings 11 May 2018, p. 206 lines 42-45.
Whatever the primary judge’s position was during the hearing, by its conclusion he was of the view that the father should pay the costs of the ICL of the proceedings. His Honour’s reasons for making that order are not challenged. It seems that the father’s appeal on this point devolves to a complaint that he should not have to pay the whole of those costs. There is no force in this ground.
Ground 4 similarly contends that the judge erred in ordering the father to pay the mother’s legal fees in the sum of $11,607.50. The father’s argument rests on the fact that the law firm was hired by the mother and acted on behalf of the mother in the proceedings. His Honour’s application of relevant principle and his reasons are not challenged. There is no force in this ground.
Grounds 5, 6, 7 and 8
These grounds appear to challenge the sufficiency of the evidence on which the judgment was based. For example Ground 5 refers to the absence of a witness, who we assume is the paternal grandfather. During the appeal hearing the father indicated that he wished to call his father to give evidence at the trial about providing him with funds to purchase Property A. The primary judge refused to allow the witness to be called. It is to be observed that the father did not file an affidavit by his father but proposed as we understand it to call him as a witness during the trial. The primary judge was perfectly entitled to take the course he did and no error is demonstrated.
His Honour said:
81.In this case, Mr [Bradford] clearly was able to give evidence, as was Mr [Bradford’s] father, who attended Court on each day of the trial. Indeed, Mr [Bradford] lives with his father. No explanation was provided as to why Affidavit material had not been filed, other than Mr [Bradford’s] protestation, “I am not a lawyer and I did not understand”. I do not refer to the principle to be frivolous or trite, but it is a long-established principle that, “Ignorance of the law is no excuse”. That is even accepting that Mr [Bradford] may not have understood what was required of him, something which I significantly doubt. Mr [Bradford] has certainly had the means to obtain advice and representation should he have chosen to and what was required to prepare his case was explained at the time that the matter was listed.
…
281.There is simply no evidence led by Mr [Bradford] with respect to the home at [Property A] purchased by him post-separation. That is not to provide benefit to Mr [Bradford] as a consequence of his aberrant approach towards these proceedings and his duty of disclosure. However, it is safer to work upon numbers that can be readily ascertained – indeed, largely corroborated through the evidence of Ms [Donnellan] – than to speculate completely. Whilst Burgoyne & Burgoyne et al permit an absence of caution, caution should not be thrown to the wind when a more cautious and predictable approach is available.
(Emphasis in original)
Equally, in Ground 6, the father complains that the primary judge failed to adjourn the case to allow paternity testing to be conducted in relation to the children. During the trial when the father asked his Honour to order a DNA paternity test he contended it was his “legal right”.[2] The primary judge refused the adjournment noting that the case had been pending for three years and this issue had not been raised until a few days before. As to this point, his Honour was entirely correct, procedural fairness was not the sole preserve of the father and to adjourn would have significant impact on the hearing and on the mother. Further, his Honour’s reasons at [35] to [37], [46] to [49] and [55] to [62] demonstrate the spurious basis for the application and his Honour’s reasons for refusing it were entirely open to him.
[2]Transcript of proceedings 11 May 2018, p. 201 line 38.
Ground 7 contends that the primary judge failed to take into account the ICL’s references to the mother’s evidence being “unreliable and deceit (sic)”.
Notwithstanding the father’s submissions to the primary judge about the mother’s evidence, in fact, the ICL’s submission was:[3]
…In our submission, your Honour would not accept the father as a witness of truth and would have great difficulty in his reliability as a recaller of facts.
[3]Transcript of proceedings 11 May 2018 p.195 lines 6-8.
Further, the ICL’s written submissions cite examples to support the contention that the father’s evidence was not truthful.
Ground 8 complains that the primary judge failed to decide the matter according to the parties’ applications. It is well accepted that a judge is not bound by the proposals of the parties but must make such orders as the judge considers is in the best interests of the children.[4] We also point out that the orders ultimately made were in accordance with the submission of the ICL.
[4]U v U (2002) 211 CLR 238 at [80].
His Honour’s reasons from [164] – [251] for coming to the conclusion he did, including the order that the father not see the children, fully and in our view accurately set out the basis for those orders. The ground is in fact a complaint about the result and not a proper ground of challenge.
None of these grounds are made out.
Grounds 9 and 10
The father here asserts that as a result of a medical condition he is taking narcotic analgesia and suggests that, as a result he lost the ability to “adequately perception of the reality (sic)”.
Whatever that expression might mean, the father agreed that he did not seek an adjournment of the proceedings before the primary judge nor did he bring this information to the primary judge and made no argument that he was unable to understand or to participate in the hearing.
On that basis these grounds must fail.
Applications to adduce further evidence
The father filed an application in an appeal to adduce further evidence as to a mental disability he asserts he has had from March 2017 and to support a contention that this mental disability affected him during the proceedings in the Federal Circuit Court, including the final hearing.
The affidavit in support of the application annexed a note from his psychiatrist dated 16 October 2018, to the effect that the father had been his patient since February 2018 and that he had been prescribed antidepressants. The psychiatrist noted that despite the medication and treatment, in his opinion, the father continues to experience depressive symptoms. The psychiatrist noted that these symptoms were said to have started in March 2017.
Also attached to the father’s affidavit was a note from his general practitioner who said the father is being treated for lower back pain for which he is prescribed narcotic analgesia.
At the appeal hearing the father sought to add a further document being a report from his psychologist dated 26 October 2018. This document stated that the father had a work related lower back injury and that he has been taking anti-depressant medication to assist with the management of his depressed state and that his mental state is unlikely to resolve or improve significantly for the next six months.
The purpose of introducing this evidence was said to demonstrate that the father was incapable of understanding the trial process and the Full Court should order another trial.
As we have said, the father conceded that he made no mention of these conditions during the trial, he did not indicate to the primary judge that as a result either of his mental condition or the effects of the medication that he found it difficult to follow the proceedings. He conceded that he did not seek an adjournment from the primary judge. He submitted that he did not know that he had a mental condition until after the trial. Even accepting this to be so, it must have been apparent to the father that he was having the difficulties he now asserts whether or not a diagnosis had been made yet he did not raise them. However, there is nothing in the medical reports that supports the contention sought to be advanced and the application to adduce further evidence will be dismissed.
The mother too sought to introduce further evidence being an affidavit rebutting the father’s application for further evidence and further sought leave to issue subpoenas with the aim of adducing further evidence. Both the application to file the affidavit and the application to issue subpoenas will be dismissed.
Costs
The ICL sought an order that the father pay its costs of the appeal in the sum of $5,181.00. While we know little about the father’s finances because of his failure to make any disclosure, it is clear that he owns a house and a car. The appeal has been wholly unsuccessful and we are satisfied that it is appropriate to make an order for costs in favour of the ICL against the father in relation to the appeal.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Austin JJ) delivered on 4 April 2019.
Associate:
Date:
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