Bruce & Bruce
[2023] FedCFamC1A 225
•8 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bruce & Bruce [2023] FedCFamC1A 225
Appeal from: Bruce & Bruce [2023] FedCFamC1F 936
Bruce & Bruce (No 2) [2023] FedCFamC1F 1012
Appeal number(s): NAA 306 of 2023
NAA 327 of 2023File number(s): NCC 4120 of 2020 Judgment of: ALDRIDGE J Date of judgment: 8 December 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Applicant seeks expedition of appeals from final parenting orders and refusal of stay – Where it is in the interests of justice for the stay appeal to be expedited – Applicant seeks CCTV material from Courthouse – CCTV has no relevance to whether primary judge erred – Applicant seeks provision of transcripts – Applicant does not have capacity to obtain transcripts – Transcripts necessary for prosecution of appeal – Court to provide the transcripts. Legislation: Criminal Code Act 1995 (Cth) s 237B.4
Family Law Act 1975 (Cth)
Cases cited: Newett & Newett [2023] HCASL 186
Newett & Newett (No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23
Sampson & Hartnett (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 25 Date of hearing: 8 December 2023 Place: Sydney (via video link) Counsel for the Applicant: Self represented Counsel for the Respondent: Self represented The Independent Children's Lawyer: No appearance (submitting notice filed) ORDERS
NAA 306 of 2023
NAA 327 of 2023
NCC 4120 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BRUCE
Applicant
AND: MR BRUCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 DECEMBER 2023
THE COURT ORDERS THAT:
1.The appeal from the refusal of the stay application is fixed for hearing by the Full Court sitting in Sydney on 12 December 2023 at 2.15 pm.
2.The material that will be before the Court hearing the stay appeal, subject to Order 4 below, will be:
(a)the material identified in paragraphs 2 and 3 of the written submissions of the applicant filed on 8 December 2023;
(b)the primary judge’s reasons of 3 November 2023 and 24 November 2023;
(c)the Independent Children’s Lawyer’s case outline filed 13 October 2023; and
(d)the applicant’s case outline filed 16 October 2023.
3.There is no obligation to prepare an appeal book or have the transcript available by 12 December 2023.
4.The question of whether the Court will take into account the reasons for judgment delivered by Cleary J on 2 February 2022 is to be determined by the Court hearing the stay appeal.
5.The Court will obtain for the hearing of the substantive appeal the transcript of the hearing before the primary judge on 13 October 2023 and 16 October 2023–19 October 2023.
6.The balance of the Applications in an Appeal are dismissed.
7.The Responses to the Applications in an Appeal filed on 6 December 2023 are dismissed.
THE COURT NOTES THAT:
A.The written submissions filed by the applicant on 8 December 2023 will stand as her Summary of Argument for the stay appeal.
B.The stay appeal will be heard in person in Sydney.
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 Bruce & Bruce has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
INTRODUCTION
These are two applications in two appeals before the Court seeking a number of orders including expedition of the appeals.
The proceedings concern the parties’ two children, X born in 2010 and Y born in 2013.
On 3 November 2023 a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders for the children to live with the respondent father who was to have sole parental responsibility for them. For two months they were to have no time whatsoever with the applicant mother. Thereafter, there was a staged reintroduction, initially at a contact centre and progressing to the children spending every second weekend with the mother during school term and block time during the school holidays.
The mother lodged a Notice of Appeal on the day of the delivery of judgment, 3 November 2023. The grounds are very briefly stated as follows:
1. Error of Law
2. Error of Fact
3. Misfeasance of Public Office with excess of Jurisdiction
4. Malfeasance of Public Office with deliberate excess of Jurisdiction
5. Constructive failure to exercise jurisdiction
6. Apprehended bias
7. Actual bias
8. Prejudicial determination of matter
9. Unreasonable interference in cross examination at Trial
10. Criminal breach of s273B.4 Criminal Code Act 1995 (Cth)
11. Judicial Corruption
12. Improper exercise of discretion
(As per the original)
The Notice of Appeal also contained 12, in contrast, detailed grounds seeking leave to appeal. However, leave to appeal is not required. To some extent they inform the grounds of appeal. However, whoever makes the procedural orders for the hearing of the appeal is likely to direct that an Amended Notice of Appeal that identifies the asserted errors with precision be filed. This is particularly so in light of the affidavit in support of the application that raises further asserted errors.
On 24 November 2023 the primary judge refused to stay the earlier orders. That refusal is the subject of the second appeal and application.
PROCEEDINGS BEFORE THE PRIMARY JUDGE
Before attending to the applications themselves, it is necessary to briefly refer to the primary proceedings.
Before the primary judge, each party sought an order that the children live with them because the other parent posed an unacceptable risk of harm to the children.
The mother asserted the father had been violent to her and the children, suspected that the father had sexually assaulted the eldest child, asserted that the father had admitted touching the child’s breasts and had sexually assaulted the mother.
These contentions were not accepted by the primary judge who found there was no probative evidence to support them. The reasons for so finding can be found at [67]–[78] of the reasons.
On the other hand, his Honour found, consistently with the evidence of the single expert psychologist, that (at [93]):
…the children have sustained emotional harm, properly described as “serious psychological harm”, by reason of their subjection and exposure to the mother’s emotionally abusive behaviour and, further, they are at risk of suffering more harm of that type if they remain living with her.
THE APPLICATIONS
The Application in an Appeal filed on 1 December 2023 seeks 17 orders. Orders 12 to 15 are, in effect, parenting orders and as such can only be made by an appeals court if it were to set aside the original orders and re-exercise the discretion. There is no need to refer to them further save to say s 273B.4 of the Criminal Code Act 1995 (Cth) does not apply to judges exercising jurisdiction to make parenting orders under the Family Law Act 1975 (Cth) – see Newett & Newett (No 9) (2023) FLC 94-133 at [43]. Special leave to appeal from that decision was refused by the High Court on 7 December 2023 (Newett v Newett [2023] HCASL 186).
Order 16, that the primary judge be removed from hearing any further matters involving the mother, is not an order that can be made.
Order 17 relates to costs.
A number of the proposed orders, such as permitting a McKenzie Friend, being Orders 3, 7, 8, 9 and 10, are orders for the Court hearing the appeals themselves. I note however that Order 8 is otiose as all appeals under the Act are appeals by way of rehearing. However, that phrase is used in a technical legal sense which may vary from the mother’s perception of a rehearing.
Identical orders are sought in the application in respect of the stay appeal.
I have formed the view that it is in the interests of justice that the hearing of the stay appeal be expedited. I do so principally having regard to a group chat message sent by the eldest child on 2 November 2023 which I consider requires urgent consideration by a Full Court. Accordingly, I will shortly make directions to bring that appeal on for hearing before the Full Court on 12 December 2023.
The mother seeks an order that “CCTV and Security Scanner footage from all floors of the [City G] Courthouse dated 20th October 2023 be secured and obtained”. This is said to be necessary because the mother was informed by “a firsthand witness” that on the day after the hearing finished, the father, his solicitor, the Independent Children’s Lawyer and a member of his firm were at the City G Courthouse. The mother attended urgently and searched the building but could not find them. She concluded that the attendance was for alternative meeting purposes and was suspicious and suggesting collusion.
Even if that is so, I am not persuaded that that material has any relevance to whether or not the primary judge erred, and that application will be refused.
The mother seeks an order that the court provide the transcript in these proceedings to her for the purposes of enabling her to prosecute the appeals. The court is not provided with funding to provide transcripts to litigants. The ordinary course is for the appellant to obtain the transcript at his or her own cost. Thus the provision of a transcript to a litigant at the cost of the court is an order that is rarely made.
The factors that a court considers in considering such applications have been set out in Sampson & Hartnett (2013) FLC 93-542.
The mother has informed me that she is not working, is on a fulltime carer pension and lives in rented premises. The carer pension will of course now be reduced because she no longer has the care of the two children. I am satisfied that she does not have the capacity to obtain a transcript.
The subject matter of the appeal are parenting orders in which orders of great significance were made because they moved the children from their primary carer.
I am also satisfied that the transcript is necessary to enable the appeal to be prosecuted because a significant part, as I understand it, of the applicant’s claim is that evidence was improperly rejected and that comments made by the primary judge during the course of the hearing give rise to an apprehension of bias or alternatively demonstrate actual bias.
Taking these matters into account, the court will provide the transcript of the matters.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 13 December 2023