FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bruce & Bruce (No 3) [2024] FedCFamC1A 33
Appeal from: Bruce & Bruce [2023] FedCFamC1F 936 Appeal number: NAA 306 of 2023 File number: NCC 4120 of 2020 Judgment of: TREE, HARPER & JARRETT JJ Date of judgment: 21 March 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the mother appeals from final parenting orders that vest the father with sole parental responsibility and impose a moratorium of two months of no contact with the mother – Assertions of bias – Where the mother makes claims that border on scandalous – Assertions of a denial of procedural fairness – Where the primary judge’s interjections were polite and helpful – Alleged breach of the Criminal Code Act 1995 (Cth) – Where it was not a crime to order that the children live with the father – Whether primary judge failed to take relevant considerations into account – Where the assertion does not bear out on the transcript – Inadequacy of reasons – Where the primary judge’s reasoning was readily discernible – No error identified.
FAMILY LAW – APPEAL – Application in an Appeal – Further evidence – Where the day prior to the appeal the mother sought to rely upon a further 3797 pages – Where all of the documents were either available at the time of trial, contentious or irrelevant – Application dismissed – Appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZX, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35, 36,
Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) rr 13.10, 13.23
Cases cited: Adacot & Sowle (2020) FLC 93-982; [2020] FamCAFC 215
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Bruce & Bruce (No2) [2023] FedCFamC1A 226
Bruce & Bruce (No2) [2023] FedCFamC1F 1012
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Newett & Newett (No 9) (2023) FLC 94-133; [2023] FedCFamC1A 23
Newett & Newett [2023] HCASL 186
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Number of paragraphs: 235 Date of hearing: 26 February 2024 Place: Heard in Sydney, delivered in Cairns The Appellant: Litigant in…
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- Bruce & Bruce (No 3) [2024] FedCFamC1A 33
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- [2024] FedCFamC1A 33
- Decision Date
CaseChat Overview and Summary
In the appeal of Ms Bruce against Mr Bruce, the mother appeals from final parenting orders that vest the father with sole parental responsibility and impose a moratorium of two months of no contact with the mother. The mother makes several assertions, including bias on the part of the primary judge, a denial of procedural fairness, and an alleged breach of the Criminal Code Act 1995 (Cth). The mother also claims that the primary judge failed to take relevant considerations into account and that the reasons provided were inadequate. The Full Court examined the claims and found that the primary judge's interjections were polite and helpful, and that there was no actual bias. The court also found that the mother's selected passages of transcript did not prove her allegations and did not fairly depict the primary judge's role in the trial. The court concluded that no error was identified in the primary judge's reasoning and dismissed the appeal.
On the eve of the trial, the mother's solicitor obtained leave to withdraw, citing difficulties in obtaining proper instructions. The mother unsuccessfully sought an adjournment, and the trial proceeded. The mother called herself and her own mother as witnesses, while the father called himself and his wife, and the Independent Children's Lawyer called two single experts. The mother proposed that the parties should share parental responsibility for the children, except for medical and educational matters, which would be solely hers. She further proposed that the children should live with her and spend two hours of professionally supervised time with the father each alternate Sunday. The mother justified these orders on the basis that the father was a risk of physical abuse to both children, a risk of sexual harm to one child, and a risk of exposing the children to family violence.
The mother's Summaries of Argument rely upon several transcript passages to support her claims, but the court found that these passages do not substantiate her allegations. The court noted that the primary judge's interventions were aimed at achieving an efficient use of time and identifying the irrelevance of many questions and topics explored in cross-examination. The court found that the primary judge's role in the trial was to control the proceedings and ensure an efficient use of time, which is particularly important in highly conflictual litigation involving self-represented litigants. The court concluded that the primary judge's interjections were not indicative of bias or a denial of procedural fairness, and that the mother's claims were without merit.
The mother also sought to rely on a further 3797 pages of evidence filed on the day prior to the appeal. The court dismissed this application, finding that all of the documents were either available at the time of the trial, contentious, or irrelevant. The court concluded that the mother's application for further evidence was misconceived and should be dismissed. The court also dismissed the mother's application to rely upon a proposed "third appeal book," which was the Trial Exhibit Book already before the court. The appeal was ultimately dismissed, and the primary judge's final parenting orders were upheld.
On the eve of the trial, the mother's solicitor obtained leave to withdraw, citing difficulties in obtaining proper instructions. The mother unsuccessfully sought an adjournment, and the trial proceeded. The mother called herself and her own mother as witnesses, while the father called himself and his wife, and the Independent Children's Lawyer called two single experts. The mother proposed that the parties should share parental responsibility for the children, except for medical and educational matters, which would be solely hers. She further proposed that the children should live with her and spend two hours of professionally supervised time with the father each alternate Sunday. The mother justified these orders on the basis that the father was a risk of physical abuse to both children, a risk of sexual harm to one child, and a risk of exposing the children to family violence.
The mother's Summaries of Argument rely upon several transcript passages to support her claims, but the court found that these passages do not substantiate her allegations. The court noted that the primary judge's interventions were aimed at achieving an efficient use of time and identifying the irrelevance of many questions and topics explored in cross-examination. The court found that the primary judge's role in the trial was to control the proceedings and ensure an efficient use of time, which is particularly important in highly conflictual litigation involving self-represented litigants. The court concluded that the primary judge's interjections were not indicative of bias or a denial of procedural fairness, and that the mother's claims were without merit.
The mother also sought to rely on a further 3797 pages of evidence filed on the day prior to the appeal. The court dismissed this application, finding that all of the documents were either available at the time of the trial, contentious, or irrelevant. The court concluded that the mother's application for further evidence was misconceived and should be dismissed. The court also dismissed the mother's application to rely upon a proposed "third appeal book," which was the Trial Exhibit Book already before the court. The appeal was ultimately dismissed, and the primary judge's final parenting orders were upheld.
Orders
Orders of the court
NAA 306 of 2023
NCC 4120 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS BRUCE
Appellant
AND:
MR BRUCE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, HARPER & JARRETT JJ
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERS THAT:
1. Save that on 26 February 2024:
(a) the appellant was given leave to file in court an Amended Notice of Appeal dated 24 January 2024, and to rely upon two further grounds as identified at page 39 of her Summary of Argument filed 26 February 2024; and
(b) the appellant was given leave to rely upon a 40 page Summary of Argument filed 26 January 2024 in lieu of oral submissions;
the appellant’s Applications in an Appeal filed 6 and 23 February 2024 are dismissed.
2. The appellant’s application to rely upon a proposed “third appeal book” is dismissed.
3. The appeal 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
For the reasons that follow the appeal will be dismissed.BACKGROUND The parties began cohabitation in 2009, and married in 2010. X was born in 2010 and Y in 2012. There was some dispute about when the parties finally separated, but it was uncontroversial that they no longer lived together by September 2013. Post-separation the father re-married, to which relationship three children were born in 2016, 2021 and 2022. The mother also re-partnered, although had separated by the time that the only child to that relationship was born in 2016. For some years, the post-separation co-parenting of the children between the mother and the father proceeded smoothly, culminating in equal shared care. However, difficulties apparently ensued, with the mother commencing these proceedings in November 2020, and the situation deteriorating further in 2021. The primary judge was unable to discern the cause for the breakdown in the parties’ co-parenting, but whatever the cause, things got to the point where the mother withheld the children from the father in August 2021, and sought interim orders terminating the children’s time with him. Orders for supervision of the children’s overnight time with the father by the paternal grandmother were made in November 2021, although in February 2022, that time was varied to not less than three hours of professionally supervised time every alternate weekend. Notwithstanding those orders, by the time of trial, the children had not spent time with the father since January 2023. The reason/s for that was/were contentious.THE TRIAL On the eve of the trial, the primary judge listed the matter before him, on which occasion the mother’s then solicitor sought, and with the mother’s agreement obtained, leave to withdraw. The reason proffered by the solicitor was that she “was struggling to obtain proper instructions. I issued a notice to [the mother] to the effect that if I could not obtain instructions, I would need to withdraw. I subsequently then got correspondence from [the mother] instructing me to withdraw….” (Transcript 13 October 2023 p.2 lines 17–20). Later in the trial the mother proffered a radically different explanation for the reason for her solicitor withdrawing, but that was not raised by her on 13 October 2023, although she did then foreshadow that she would seek that the trial be adjourned. The following Monday the mother unsuccessfully pressed her adjournment application, and thereafter the trial proceeded. The mother called herself and her own mother as the witnesses in her case, the father called himself and his wife, and the ICL called two single experts. By the conclusion of the trial, the mother’s proposal (which over time had varied markedly) was that the parties should share parental responsibility for the children, save for medical and educational matters, which would be solely hers. She further proposed that the children should live with her, and spend two hours of professionally supervised time with the father each alternate Sunday (at [29]). She justified those orders on three bases: firstly, that the father was a risk of physical abuse to both children; secondly, that he was a risk of sexual harm to X; and thirdly, that he was a risk of exposing the children to family violence (at [52]).
Evidence
Evidence Before The Court
Section 69ZX further provides:Court's general duties and powers relating to evidence(1) In giving effect to the principles in section 69ZN, the court may:…(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:…(d) limiting the time for the giving of evidence; or…(i)limiting, or not allowing, cross-examination of a particular witness; or Therefore, it can be seen that in parenting proceedings, a judge is no passive observer, but rather has positive duties to control the proceedings in the ways those provisions require. Particularly in highly conflictual litigation involving one or more self-represented litigants, that duty can be exacting. The mother’s Summaries of Argument rely upon a number of transcript passages as apparently making good her “words to the effect of” contention contained in this ground, but they simply do no such thing. Even if his Honour was in error in, for example (at Transcript 18 October 2023, p.246 lines 45–47) suggesting that any breach by the father of relevant telecommunications law by recording a phone call without permission was not relevant to the risk assessment he was being asked to undertake, it does not – at all – speak to actual bias. Worse, not only do the mother’s selected passages of transcript not prove her allegation, they do not fairly depict the primary judge’s role in the trial either. Of course, as one would inevitably expect, the transcript is replete with examples of the primary judge directing the proceedings in an effort to achieve an efficient use of time, including identifying the irrelevance of many questions asked, and topics explored, in cross-examination by both the ICL’s counsel, the father’s counsel and the mother. Relevant to the mother’s cross-examination of the father, the primary judge’s interventions include the following:HIS HONOUR: Can you just answer that question for us, [to the father]‑‑‑[THE FATHER]: Well, I – well, I’m not suggesting necessarily that you have sent those images.[THE MOTHER]: I’m not asking if you’re suggesting ‑ ‑ ‑HIS HONOUR: She’s asking you why you would suspect she was capable of doing it. Can you give us a reason?‑‑‑[THE FATHER]:I don’t have a reason, your Honour.[HIS HONOUR]: All right. Okay.[THE MOTHER]: So you have just answered yes, that that is something from your personal experience with myself that you, yes, think I would do, but now you can’t give a reason as to why I would do that. So is it yes or no?HIS HONOUR: That’s not a proper question, [to the mother]. You can’t ‑ ‑ ‑[THE MOTHER]: Do you still believe ‑ ‑ ‑HIS HONOUR: [To the mother], just relax. I’m the referee. When I blow the whistle, you have got to stop. You can’t, as a questioner, dictate to the witness how he has to answer your questions. If you answer – ask a question, it’s his entitlement to answer how he sees fit, within the rules of the game, and I administer them strictly. I don’t think you can squeeze any more juice out of this lemon. You have got his concessions that these emails and these as yet undisclosed images were sent from his email address. At the moment, the only evidence I have is that the only two people with access to that email address at that time were him and you. He denies that it was him. The implication is that it was you. You have asked him what your motive would be for that and he hasn’t been prepared to speculate. What else can you ask him now that would take this issue any further? You can ask ‑ ‑ ‑[THE MOTHER]: I would – yes.HIS HONOUR: You can make a submission at the end of the case that he sent it and I should disbelieve his evidence that he – of his denial of having done so, but that’s a matter of assessment at the end of the day, isn’t it?(Transcript 18 October 2023, p.233 lines 8–42)…HIS HONOUR: [To the mother], look, I’m sorry. I don’t mean to be an obstacle, but if you think – and there’s a suggestion you do, because I have read your case outline. If you think the decisions made by Victim Services about the compensation payable to you and to [X] and to [Y] is proof – binding proof about the commission of some form of abuse by the father, I can disabuse you of the situation now.[THE MOTHER]: Yes.HIS HONOUR: That’s just wrong. It’s not correct. And the reason it’s not correct, in summary, is because people who feel they have been the victim of some offence can make a unilateral application for compensation to Victim Services, and Victim Services, sometimes on the papers in chambers, other times in an open hearing before the tribunal, sometimes before the District Court of New South Wales, make a decision about the amount of compensation they’re going to pay out, and they do that without the alleged perpetrator ever knowing anything about it. That’s why I asked [the father] yesterday, whether he had ever been contacted by a Victims’ Compensation.[THE MOTHER]: Yes.HIS HONOUR: Because once Victims’ Compensation pays out to a victim, sometimes they contact the alleged perpetrator for the purposes of recovering that money for the state. Not always, but sometimes. And that’s the first occasion that the perpetrator – alleged perpetrator ever finds out about it, and it’s the very first time they ever get a chance to have their say about whether or not the compensation should have been payable, or the amount that they should have to reimburse, because sometimes it’s not a total amount. You know, in this case, it’s not cut and dried, as in many cases, because the compensation is paid out following the alleged perpetrator’s conviction of a – for a criminal offence. But we know [the father] has never been convicted of a criminal offence. He hasn’t even been prosecuted. So he knew nothing about the compensation awards, and that’s why there is no issue estoppel, which is the correct terminology in this court, by a finding made by the Victims’ Compensation people. So we can move on, okay?(Transcript 18 October 2023, p.240 lines 5–37)…[THE MOTHER]: So it’s your belief that that’s a substantial reason for safety, to record non-consensual phone calls? Is that correct?HIS HONOUR: I don’t know what that means, even if the ‑ ‑ ‑[THE MOTHER]: Okay.HIS HONOUR: What’s a non-consensual phone call?[THE MOTHER]: Sorry. I have got laws in my head, your Honour. I’m sorry.HIS HONOUR: Okay. Look, there’s no need to apologise. I’m just trying to sort out the meaning of the question so that the meaning of the answer is clear.[THE MOTHER]: Okay. Thank you.HIS HONOUR: So that at the end of the process when everyone’s making submissions and you make a submission, it will be consistent with the evidence, not your belief about what has been said. I want to make sure that there’s a coincidence between what you believe and what I believe.(Transcript 18 October 2023, p.244 lines 5–24)…HIS HONOUR: [To the mother], I’m sorry. The question has gone for a long time and includes a whole heap of components. So even if I let you get to the end, I won’t understand the answer that [the father] gives, if he’s able to. If you can tell me what you’re driving at, I will try and help you construct this.(Transcript 18 October 2023, p.259 lines 6–9)…[THE MOTHER]: Yes. Is your Honour able to have a look, and in – based on your opinion, whether you believe the time spent between myself and my mother, as opposed to [Mr Bruce] and [Ms U], has been a fair distribution or representation for you and the court?HIS HONOUR: If you are intending to imply that because your case took a day and a quarter to complete, and that the father’s case is going to take a bit less, maybe a day to complete, that that of itself is unfair, I’m unable to see how that is. You have been in cross-examination of the father now for an hour and 45 minutes, and I don’t mean to be disrespectful. I think the meaningful part of that cross-examination could be confined 10 minutes, because you have asked him about a whole host of things that have got nothing to do with the outcome of the case. So a raw comparison of the time spent in cross-examination is not a relevant consideration for fairness. If you are complaining that you haven’t had the same amount of time in cross-examination of the father and his supporting witness as the other parties had of you and your mother, then what I want you to do is articulate how you want me to cure the defect, given the amount of time left in the case. What’s your proposal? I will listen to anything reasonable you have got to say.(Transcript 18 October 2023, p.259 lines 30–47)
Decision
Reasons for decision
As to telephone communication, his Honour concluded:141.No orders are made to regulate the children’s telephone communication with the mother when they live with the father, or with the father when they are spending time with the mother. The children will see the parties frequently enough without the need for such prescriptive communication. The mother can hardly quibble. She told the single expert it is inconvenient for the children to receive telephone calls from the father, so the reverse must also be true, and she did not propose any communication orders herself.(Footnotes omitted)MATTERS AFTER JUDGMENT The mother filed this appeal on the same day as the primary judge delivered judgment. Next, on 22 November 2023, the mother filed an Application in a Proceeding which, amongst other things, sought a stay of the primary judge’s parenting orders (“the stay application”). That application was dismissed by the primary judge on 24 November 2023 (Bruce & Bruce (No 2) [2023] FedCFamC1F 1012). On 3 December 2023, the mother filed an appeal from the refusal to stay the primary judge’s orders (“the stay appeal”) which was dismissed by the Full Court on 15 December 2023 (Bruce & Bruce (No 2) [2023] FedCFamC1A 226).THE MOTHER’S APPLICATION IN AN APPEAL FILED 6 FEBRUARY 2024 By Application in an Appeal filed 6 February 2024, the mother sought a raft of orders, which application was listed for the hearing of the appeal on 26 February 2024. Aspects of the relief she sought were not controversial and at that hearing, we permitted the mother to file an Amended Notice of Appeal dated 24 January 2024 augmented with a further two grounds, and to rely upon a 40 page further Summary of Argument in lieu of making oral submissions. Otherwise most of the application was overtaken by subsequent events and hence fell away, or should be otherwise dismissed for the reasons which follow. By paragraph 1, the mother sought that the appeal be, in effect, a hearing de novo, with her being able to lead further (unspecified) new evidence. Whilst an appeal in this court is indeed by way of rehearing (Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) s 35(a)) with the opportunity to receive fresh evidence (FCFCOA Act s 35(b)) subject to it meeting the requirements set out in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”), the appeal does not proceed as a hearing de novo (Allesch v Maunz (2000) 203 CLR 172 at [23]) but rather the court can only proceed as s 36 of the FCFCOA Act provides. Thus the relief which the mother sought in this paragraph was misconceived. By paragraph 2, the mother sought to rely upon a Supplementary Appeal Book, which transpired was the Trial Exhibit Book, which was already before us. Paragraph 3 was acceded to, in that we permitted the mother to rely upon a further 40 page Summary of Argument filed 26 February 2024 in lieu of oral submissions. As to paragraph 4, in fact the mother’s 24 page Summary of Argument was accepted for filing on 25 January 2024, so no order for leave to file it is required.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.