BRYANT & STAPLETON
[2018] FamCAFC 236
•30 November 2018
FAMILY COURT OF AUSTRALIA
| BRYANT & STAPLETON | [2018] FamCAFC 236 |
| FAMILY LAW – APPEAL – PARENTING – PROCEDURAL FAIRNESS – Where the primary judge relied upon a s 69ZW report from the Department of Health and Human Services – Where the appellant was not unfairly denied the opportunity to cross-examine the author of the report or to adduce rebuttal evidence – Where the primary judge relied on the report as background information only and did not replicate any of the report’s conclusions in the reasons for judgment – Discussion of s 69ZW of the Family Law Act 1975 (Cth) – Where the primary judge incorrectly concluded that the report was already admitted into evidence by operation of s 69ZW(5) of the Act – Error of law – Where in the particular circumstances of this case the error of law was not material and does not invite appellate intervention – Whether the primary judge unfairly restricted the appellant’s cross-examination or re-examination – Where there was no error in the primary judge’s trial management – Where the primary judge appropriately assisted the appellant in line with the Re F: Litigants in Person Guidelines (2001) FLC 93-072. FAMILY LAW – APPEAL – PARENTING – EVIDENCE – Whether the primary judge wrongfully excluded evidence admitted pursuant to a Notice to Admit Facts filed by the appellant – Where the primary judge was correct to exclude the Notice – Whether the primary judge made an error in making a positive finding of child abuse – Where the primary judge made no such finding – Whether the primary judge’s findings were based on material ruled inadmissible – Where the material in question had been admitted – Where all of the primary judge’s findings were open on the evidence – Where none of the grounds of appeal were made out – Appeal dismissed – No order as to costs. |
| Evidence Act 1995 (Cth) ss 26, 37, 39, 46, 56 Family Law Rules 2004 (Cth) r 11.07 |
| Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Concrete Pty Ltd v Parramatta Design & DevelopmentsPty Ltd (2006) 229 CLR 577; [2006] HCA 55 Condon v Pompano Pty Ltd (2013) 252 CLR 38: [2013] HCA 7 Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9 Department of Family and Community Services v Jordan (2012) 47 Fam LR 666; [2012] FamCAFC 147 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 M v M (1988) 166 CLR 69; [1988] HCA 68 Metwallyv University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 |
| APPELLANT: | Mr Bryant |
| RESPONDENT: | Ms Stapleton |
| FILE NUMBER: | MLC | 553 | of | 2007 |
| APPEAL NUMBER: | SOA | 95 | of | 2017 |
| DATE DELIVERED: | 30 November 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren DCJ, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 18 June 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 November 2017 |
| LOWER COURT MNC: | [2017] FamCA 1005 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | Did not participate |
INDEPENDENT CHILDREN’S LAWYER: Did not participate
Orders
That the appeal against the orders of Thornton J made on 17 November 2017 be dismissed.
That there be no order as to costs.
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 Bryant & Stapleton 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 MELBOURNE |
Appeal Number: SOA 95 of 2017
File Number: MLC 553 of 2007
| Mr Bryant |
Appellant
And
| Ms Stapleton |
Respondent
REASONS FOR JUDGMENT
Introduction
On 17 November 2017 a judge of the Family Court of Australia made final parenting orders pursuant to the Family Law Act 1975 (Cth) (“the Act”) in proceedings between Mr Bryant (“the father”) and Ms Stapleton (“the mother”). The orders concern S (“the child”) who was fourteen years old at the time of trial.
The primary judge ordered that the mother have sole parental responsibility for the child, that the child live with the mother, and that the child spend time and communicate with the father in accordance with the child’s wishes. Text messages, phone calls and social media communication are to be initiated by the child, but the father may email the child once per week.
The orders dated 17 November 2017 are the third set of final orders made in these proceedings. Final parenting orders have previously been made in both the Family Court of Australia in June 2008 and in the then Federal Magistrates Court of Australia in February 2011 where it was ordered that the child live with the mother and spend time with the father.
The mother commenced the current proceedings in August 2015 following an incident which occurred on 17 July 2015 in which the child claimed the father pushed her and swore at her.
The trial commenced before the primary judge on 7 April 2017 and continued for five days when it was adjourned part-heard to 8 and 9 June 2017.
By Amended Notice of Appeal filed 18 May 2018 the father appeals the orders of the primary judge.
The father appeared in person at the trial and during the hearing of the appeal. The mother and the Independent Children’s Lawyer both elected not to participate in the appeal.
The appeal
The father filed a Summary of Argument on the same day he filed an Amended Notice of Appeal. Unfortunately, the Summary of Argument was directed to the original Notice of Appeal and did not address the Amended Notice of Appeal. As a result, the Summary of Argument was of little assistance and was not relied upon by the father during the hearing of the appeal.
The Full Court was not provided with a complete transcript of the proceedings before the primary judge. Both at the procedural hearing and at the start of the appeal hearing, the father was informed of the difficulty he would face in proving his grounds of appeal without reference to the relevant parts of the transcript.
The father provided parts of the transcript. It has emerged that although those parts provided appeared to have been produced by Auscript they were, in fact, prepared by the father himself from an audio recording and not by Auscript. Apart from some minor deviations from the recording and formatting differences it was not suggested that the substance was not accurately transcribed. For that reason, although the practice is not one to be followed, in the circumstances of this case we will rely on the transcript provided.
On the hearing of the appeal the father abandoned many of his grounds. However, he continued to press grounds 1, 2.3, 2.7, 2.8, 2.14, 3, 5, 6.1, 6.5, 7, and 9.
Grounds 1, 2.3, 2.7, 2.8, 2.14, 3 and 7 are challenges relating to procedural fairness. Given that such challenges concern the legitimacy of the trial process and, by extension, the validity the primary judge’s decision, they must be considered first.[1]
[1] Concrete Pty Limited v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611-612, 634.
Ground 3
Ground 3 is:
The learned judge failed to accord the appellant natural justice/procedural fairness and/or failed to apply s.144(4) of the Evidence Act (Cth) 1995 in that the appellant was not given the opportunity to cross examine respond to, or introduce contrary evidence in relation to a s69ZW report where the findings/recommendations in that report were duplicated in the Orders and findings ultimately made;
(Errors and omissions in original)
The father raised three complaints under this ground. Firstly, that he was unfairly denied the opportunity to cross-examine the report writer, secondly that he was not allowed to introduce evidence “contrary” to the report, and thirdly that the primary judge replicated the report’s findings in the orders and reasons.
In order to appreciate the father’s submissions on this ground it is necessary to set out the following events.
On 28 January 2016, an order was made pursuant to s 69ZW(1) of the Act for the Department of Health and Human Services (“DHHS”) to prepare a report and provide documents or records of any notifications received by the DHHS in relation to the child (“the report”). The report contained a history of the notifications received by the DHHS, followed by an assessment of the reported concerns by the author. The report was released to the parties on 2 March 2016.
Both the mother’s and the father’s trial affidavits referenced the report, and the mother sought to rely upon it in her Case Outline.[2]
[2] Outline of Case of Ms Stapleton filed 31 March 2017, page 5.
The father objected to the admission of the report in his Case Outline, and submitted that the author was not an expert and that no weight ought to be attached the report.[3]
[3] Outline of Case of Mr Bryant filed 3 April 2017, page 12.
On the first day of the trial, the father raised his objection to the report and the primary judge made the following remarks:
… But that report, it’s not evidence, it’s just a report which is a summary of the file. And it’s a matter for me as to what weight I would attach to that material. So you can make submissions to me about that at the end of the trial, but it’s clear that that witness is not going to be made available for cross-examination. So that’s significant.[4]
…
… that person is not available for cross-examination, so it can’t be relied on as evidence.[5]
[4] Transcript, 7 April 2017, p 15 ln 45-49.
[5] Transcript, 7 April 2017, p 16 ln 15-16.
During the cross-examination of the father, counsel for the mother raised parts of the report with him. The father objected and argued that “[he] was led to believe … that it wasn’t in evidence”.[6]
[6] Transcript, 12 April 2017, p 9 ln 45.
In response to this objection, counsel for the mother referred the trial judge to
s 69ZW(5) of the Act and submitted that the report was admitted into evidence by operation of that subsection. It is clear that her Honour accepted that submission, and proceeded on the basis that the report was already in evidence. We note that the report was not marked as an exhibit in the trial.
The primary judge stated that the report “forms part of the background to this hearing”,[7] and informed the husband of his ability to make submissions about the weight to be attached to the report given that the author would not be cross-examined.[8]
Did the primary judge unfairly deny the father the opportunity to cross-examine the author or to adduce rebuttal evidence?
[7] Transcript, 12 April 2017, p 11 ln 35.
[8] Transcript, 12 April 2017, p 11 ln 28-30.
Procedural fairness is an “essentially practical” rather than an “abstract concept”.[9]
[9] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37] (Gleeson CJ); see also Condon v Pompano Pty Ltd (2012) 252 CLR 38.
The focus of these proceedings were on the best interests of the child and not any entitlements of the parents.[10] Division 12A of Part VII of the Act reflects this focus and contains principles, powers and duties in relation to the conduct of child-related proceedings. Relevantly, the primary judge was required to have regard to the principle that the court is to actively direct, control and manage the conduct of child-related proceedings pursuant to s 69ZN(4) of the Act.
[10] The Act s 60CA; Cooke & Morton (2018) FLC 93-820 at [39]; M v M (1988) 166 CLR 69 at 76.
In giving effect to that principle, the primary judge was entitled to limit the number of witnesses in the proceeding and to limit or not allow the cross-examination of a witness.[11] Such power was available to be exercised on the court’s own initiative in accordance with s 69ZP of the Act. As such, it was well within the scope of the primary judge’s powers to refuse the father’s request to cross-examine the author or to adduce rebuttal evidence.
[11] The Act s 69ZX(2)(i) and (j).
The father failed to identify what the proposed cross-examination would be focused on or how it would be relevant to the issues in dispute. It is difficult to comprehend the utility of the father cross-examining the author, particularly when the father conceded on appeal that the history of notifications recounted by the primary judge at [49] of the reasons was not controversial.
The primary judge had already informed the parties of the limited value of the report and indicated to the father more relevant issues in the proceedings. For example, the primary judge stated:[12]
… So it’s is really, I suppose, a report that talks about what’s on the Departmental file, but a lot of this is not particularly relevant because there has been no action taken by the Department, so I don’t know what I can make of this except to say, well the Department have been involved, there has been lots of toing and froing, the father has had concerns, the mother has had concerns, the Department have investigated it all, they haven’t intervened in the proceedings so they haven’t seen it to be serious enough to intervene, and they haven’t taken any action.
[12] Transcript, 12 April 2017, p 11 ln 36-43.
The decision of the primary judge to deny the father the opportunity to cross-examine the author was appropriate trial management and did not represent a denial of procedural fairness.
As to the father’s challenge that the primary judge refused his request to present rebuttal evidence, the father was unable to identify where he made such a submission to the primary judge. Nor did he indicate in the appeal hearing what such rebuttal evidence may have been.
Did the primary judge rely on the report as a basis for any findings, or replicate the report’s conclusions in the reasons for judgment?
Her Honour addressed the report in the reasons under the heading “Background” and said:
45.A report was prepared by [Mr O] from Child Protection in the Department of Health and Human Services (“the Department”). The Department have at no time issued a protection application in the Children’s Court or sought to intervene in any proceedings. I note that this report is untested as [Mr O] was not a witness in the trial and was not cross-examined, but it forms part of the background to these proceedings.
…
47.At the beginning of the trial the father objected to the report from the Department prepared by protective worker [Mr O] being admitted into evidence although he referred to that report in his affidavit.
48.He subsequently sought to cross-examine [Mr O], but the report writer was not a witness in the trial and was not available for cross-examination.
49. The report is part of the background to the trial. I do not rely on this report for the purposes of making any findings but I set out the content of the report in summary, because it records relevant notifications, investigations and outcomes by the Department:
(Emphasis added)
At [49], the primary judge then extracted the notifications and outcomes recorded during 2015 from the report as background information. As noted above, the father conceded during the appeal hearing that these notifications to the DHHS were not contentious.
The primary judge also noted some of the content of the report as follows:
50.On page 7 it was reported that “The Department spoke with [the child] who denied all allegations that she has self-harmed”. Further it was reported that “No marks were observed on [the child] to confirm self-harm”. The Department assessed that there was “insufficient evidence to corroborate the allegation that [the child] is self-harming”.
51.In relation to an alleged incident of family violence of the father towards [the child] the report stated:
The Department spoke with [the child] who has stated that she was scared of her father because [the father] pushed her and then raised his hand threatening to smack her… [the child] stated that he has smacked her on the arm before but hasn’t told anyone about it.
…
88. The mother deposed at paragraph 64 of her affidavit that [the child] was interviewed by the Department over the alleged incident and that “[the child] denied any self-harming or suicidal thoughts”. Again it is not clear whether the mother was present for this conversation. However the s 69ZW report prepared by the Department makes reference to this incident and it was reported that the child denied all allegations that she self-harmed.
On appeal, the father was unable to identify where the primary judge had replicated the report’s conclusions, or relied on the report as evidence to support a finding. Her Honour relied on, and placed weight on, the abundance of evidence available from the two family reports and the mother to support her findings. As such, there is no merit to this ground.
Section 69ZW(5) of the Act
As outlined above, the primary judge accepted that the report was already in evidence pursuant to s 69ZW(5) of the Act.
Subsections 69ZW(1) and (5) of the Act provide that:
(1)The court may make an order in child-related proceedings requiring a prescribed State or Territory agency to provide the court with the documents or information specified in the order.
…
(5) The court must admit into evidence any documents or information, provided in response to the order, on which the court intends to rely.
(Emphasis added)
The Full Court (Bryant CJ, Coleman and Ryan JJ) discussed s 69ZW of the Act in Department of Family and Community Services v Jordan.[13] At [51] their Honours stated:
Some argument was addressed to s 69ZW(5) and the effect of that provision in relation to admissibility of the notification. Providing as it does that the court must admit into evidence material received pursuant to s 69ZW upon which it intends to rely, the subsection could be described as otiose. In essence it does no more than remind a court that judicial decisions must be based on evidence. Whether material produced in compliance with an order made pursuant to s 69ZW should be admitted into evidence is not addressed. As with all parenting proceedings, subject to the Act, admissibility is to be determined in accordance with the Evidence Act 1995 (Cth).
[13] (2012) 47 Fam LR 666 (“Jordan”).
We respectfully agree with the Full Court in Jordan that s 69ZW(5) of the Act simply provides that if the court intends to rely on a document or information provided in response to a s 69ZW order, then it must admit it into evidence.
Section 69ZW(5) of the Act does not, in and of itself, admit documents or information into evidence. Whether a report produced in compliance with a
s 69ZW order is admitted into evidence remains a question for the primary judge to determine in accordance with the applicable provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Her Honour’s conclusion that the report was already admitted by the operation of s 69ZW(5) was an error of law. However, the error was not material and did not affect her Honour’s determination of any issue and does not invite appellate intervention.
Ground 1
Ground 1 is:
The learned Judge erred in the application of the principle established in Browne v Dunn, and or section 46 of the Evidence Act 1995 (Cth) by refusing the appellant request to recall his witness, [Mr Q Bryant], to give evidence that denied the appellant procedural fairness…
(Errors and omissions in original)
Mr Q Bryant is the father’s brother and lives in the United States of America. He swore an affidavit in the proceedings and gave evidence via videolink during the trial.
There is no transcript of the cross-examination of Mr Q Bryant because, as indicated above, the father did not provide the court with a complete transcript. The father alleges that her Honour refused him the opportunity for “direct examination” of Mr Q Bryant, and that her Honour “introduced” him into Court. As there is no transcript of this part of the trial, we cannot determine these complaints.
Mr Q Bryant’s affidavit stated that each year he returned to Australia to spend Christmas with his family. His affidavit stated that when he returned at Christmas in 2016, he could not believe the change in the child.[14] After Mr Q Bryant was cross-examined, the father re-examined him. The following exchange occurred:[15]
[MR BRYANT]: … We’ve been to Queensland many times when you come back? ---Correct.
So it would be easy to get those dates mixed up, because they all seem the same, right? ---I accept that.
Yes. So – regards [the child] attending Christmas in 2015, the first time that you became aware of the problems with [the child] - - - ?---Correct.
[14] Affidavit of Mr Q Bryant filed 2 March 2017 at [11].
[15] Transcript, 13 April 2017, p 3 ln 30.
At this point, her Honour intervened and stated that Mr Q Bryant’s affidavit spoke of him noticing a change in the child in 2016 not in 2015.
Following the close of re-examination, the father submitted to the primary judge that there “was only one point” his brother needed to make, namely that the child and the father were both present at a family Christmas celebration in 2015.[16] The primary judge informed the father that she did not accept that Mr Q Bryant had said that he was present at Christmas 2015. The father then sought to recall his brother pursuant to s 46 of the Evidence Act.[17] As these proceedings were heard pursuant to s 69ZT(1) of the Act, s 46 of the Evidence Act did not apply.
[16] Transcript, 13 April 2017, p 5 ln 43.
[17] Transcript, 13 April 2017, p 6 ln 14-15.
The primary judge refused the father’s application and stated that it was a matter for submissions at the end. The primary judge assured both parties that the matter of Christmas 2015 was not significant or material to the main issues to be determined.[18]
[18] Transcript, 13 April 2017, p 7 ln 1-8.
Despite this direction from the primary judge, when the trial resumed some two months later the father made another application to have his brother recalled. This second application was made on the basis that there was confusion about the evidence that Mr Q Bryant had given, and that he wished to amend his affidavit in writing. Counsel for the mother objected to the application.
The primary judge refused the application and stated at [152] of the reasons that it was unfair to recall the witness where there had been a significant delay since he had given his evidence.
It was open to the primary judge to refuse both of the father’s requests, and to conclude that any further re-examination of Mr Q Bryant would not be of assistance. Thus, there was no denial of procedural fairness in respect of this issue.
The father also submitted that he was not afforded the opportunity to re-examine his brother as to the child’s alleged self-harm incident. Whether Mr Q Bryant witnessed the child’s alleged self-harm messages on Instagram was not addressed in his affidavit. This issue was not raised at trial and therefore it cannot be argued on appeal.[19]
[19] Metwallyv University of Wollongong (1985) 60 ALR 68 at [7].
The father also complained that counsel for the mother and counsel for the Independent Children’s Lawyer continually objected to his re-examination of Mr Q Bryant on the basis that he was leading the witness, or that the questions did not arise out of cross-examination.
Pursuant to s 69ZT(1) of the Act, a number of provisions of the Evidence Act did not apply to these proceedings, including the prohibition of leading questions
(s 37 of the Evidence Act) and the limits on re-examination (s 39 of the Evidence Act). However, the primary judge was required to limit evidence to that which was relevant (s 56 of the Evidence Act) and was entitled to control the questioning of witnesses (s 26 of the Evidence Act). The primary judge also had extensive powers to give directions relating to evidence per s 69ZX of the Act.
It was open for the primary judge to restrict the father’s re-examination of Mr Q Bryant pursuant to these sections. Such conduct, properly grounded in the Act, is effective trial management.
We are satisfied the primary judge afforded the father procedural fairness and none of the father’s arguments under this ground have any merit.
Ground 2.3
Ground 2.3 asserts that the appellant was denied a fair opportunity to present his case or cross-examine the respondent or other witnesses.
Sub-grounds 2.3(a) and (d) make complaints that the primary judge intervened to stop the father from cross-examining the mother after six hours, and the family report writer after three hours. As was explained to the father during the hearing of the appeal, in order to argue that his cross-examination was wrongfully terminated, he first had to establish that it was in fact terminated. When asked to identify where in the transcript he was stopped by the primary judge, the father conceded on both accounts that he could not do so.
Sub-ground 2.3(b) contends that the father was denied a fair opportunity to present his case because the respondent’s counsel continued cross-examination for most of five days whilst he had only nine hours.
The court was not provided with applicable sections of the transcript of the father’s cross-examination. As such, we are unable to consider whether the father’s cross-examination was focussed and relevant to the issues to be determined by the primary judge and this aspect of the appellant’s complaint could not be substantiated. In any event, the father did not indicate that any issues were left unaddressed at the end of this time for cross-examination and in those circumstances, no unfairness is established.
As to sub-ground 2.3(c), the father argued that the primary judge “admitted procedural error” on the fifth day of the trial when adjourning the case for more hearing days, and impliedly suggested that her Honour had been misled as to the estimated length of the trial. The transcript indicates that the original estimated hearing time, given by the father’s previous representative, was three days. This was then increased to five days on the first day of the trial. On the fifth day of the trial, the matter was further adjourned.
The primary judge’s decision to extend the hearing time was perfectly orthodox and her Honour was not wrong to do so.
It follows that the errors asserted in ground 2.3 have not been established.
Grounds 2.7 and 2.8
The essential criticism contained in ground 2.7 is that the father did not receive a fair trial because there was inadequate “expert mental health evidence” about the mother before the primary judge. It is convenient to address ground 2.8 here also, which asserts that the primary judge denied the father a fair trial by refusing his request for an adjournment to obtain further psychiatric evidence.
The primary judge made findings relating to the mother’s mental health and the psychiatric report as follows:
213. I am satisfied on the evidence of the father that he is firmly of the belief that the mother suffers from a mental illness. The father consistently maintained that the mother should be assessed by a psychiatrist but failed to acknowledge that the mother had attended for assessment with [Dr D] in accordance with interim court orders but that no assessment was forthcoming because of his own failure to pay for the report in accordance with the interim orders made.
214. As mentioned previously, interim orders were made on 16 November 2015 providing that the mother attend upon a psychiatrist for the purposes of the preparation of a report and the entire cost of the report was to be borne by the father. I accept the evidence of the mother that she attended [Dr D] to be assessed in accordance with interim court orders. There is no evidence that the father paid for the report.
The father’s failure to pay for the psychiatric report meant that it was not before the primary judge at trial. The suggestion by the father in ground 2.7 that he was denied a fair trial due to the absence of this evidence failed to acknowledge this fact and was frankly fanciful. It follows that the father’s assertion lacks any merit.
In relation to ground 2.8, an application for an adjournment to obtain further psychiatric evidence cannot be identified in the transcript provided by the father. As a result, the foundation for this alleged error could not be made out.
A number of the father’s arguments relating to ground 2.7 and 2.8 effectively sought to challenge the findings of fact made by the primary judge in [213] and [214] of the reasons. As the father did not raise these arguments in any of his grounds of appeal, they were not permitted.
Ground 2.14
In this ground, the father complains that he was denied procedural fairness because the primary judge did not pay sufficient attention to the applicable Re F: Litigants in Person Guidelines.[20] Although the father did not explicitly raise Re F in relation to this ground, it was implied.
[20] (2001) FLC 93-072 (“Re F”).
The substance of this ground is that the primary judge failed to properly consider and apply the Re F guidelines by failing to inform the father that her Honour could assist in the taking of objections, and failing to ask whether the father was objecting to the admission of certain exhibits.
We note that the primary judge can provide general advice to a litigant in person about their right to object, but is not obliged to provide advice every time particular questions or documents arise.[21]
[21] Ibid at 88,279 [253].
It is clear from the extracts of the transcript available that the primary judge adequately assisted the father with trial procedure in accordance with the Re F guidelines.[22] It is also apparent that the father was able to take and argue objections to the admissibility of evidence.
[22] See, for example, Transcript, 7 April 2017, p 9 ln 5-10.
There is no merit to either aspect of this ground.
Ground 7
Ground 7 asserts that the father was denied procedural fairness because the primary judge admitted into evidence three emails sent from the child’s iPad on 17 July 2015 that the father had not seen before and did not get a chance to authenticate them. During the appeal hearing, the father argued that the emails should not have been admitted because the mother withheld them from discovery and failed to disclose them in previous proceedings.
The father first raised the issue of the emails during cross-examination. The primary judge then called for the emails to be produced. Clearly, the father had sufficient knowledge of the emails to cross-examine the mother on them and we cannot see how he was prejudiced by their production in these circumstances.
Having received the emails on the second day of the trial before an eight week adjournment, the father had ample opportunity to obtain evidence to authenticate or refute them.
The father submitted that as a litigant in person, he did not understand the importance of the emails at the time or the relevant procedure. We reject this complaint. The transcript reveals that the father had an adequate understanding of trial procedure.
The father had ample opportunity to authenticate the emails but made the decision not to do so. This does not demonstrate procedural unfairness; it was a forensic decision that he made. The fact that the father was a litigant in person did not entitle him any special privileges beyond being afforded procedural fairness in keeping with the Re F guidelines. As stated by McHugh J in Gallo v Dawson, a “lack of legal knowledge is a misfortune, not a privilege”.[23]
[23] (1990) 93 ALR 479 at 481.
Ground 5
The challenge asserted in ground 5 is that the primary judge wrongfully excluded evidence that the father said should have been admitted because the mother did not respond to the father’s Notice to Admit Facts.
The primary judge made trial directions on 10 June 2016. These orders did not provide for the filing of a Notice to Admit Facts, and expressly prohibited the parties from filing any further material except as provided by the orders without leave of the Court.
The father filed a Notice to Admit Facts on 4 August 2016 without leave of the Court. The Notice did not meet the requirements of Rule 11.07 of the Family Law Rules 2004 (Cth) and the 158 ‘facts’ that the father asked the mother to admit consisted mostly of vague, trivial or irrelevant allegations.
By letter dated 8 August 2016, the mother’s solicitor expressly stated that the Notice was in breach of the earlier orders, that the mother would not respond and that the father could not assume the mother admitted any allegation in the document. Despite this response, the father sought to rely on the Notice at trial.
Her Honour rejected the document and in our opinion was right to do so. Pursuant to the trial directions, the father was not permitted to file this document without leave. Regardless, the mother’s solicitor had made it clear that the mother could not be taken to have admitted any of the largely irrelevant “facts” contained within the Notice. Accordingly, there is no merit in this ground of appeal.
Ground 6.1 and 6.5
The starting point of ground 6 was a contention that the primary judge made a “positive finding of child abuse” against the father. The father asserted that this finding constituted an error that led to a plainly unjust result in the circumstances.
An important issue at trial was an incident at the father’s home on 17 July 2015. The primary judge’s findings about this incident were as follows:
203.On all the evidence I find that when the child returned to the father’s home on 17 July 2015 after tennis that the father swore at the child aggressively and denigrated her when he was angry, pushing her on the shoulder causing her to fall onto a bed and in the child’s words “hurting” her knee or leg because the push was unexpected. I do not find that the child suffered any physical injury as a result. I find that because of the father’s manner the child believed that he would hit her again.
204.I find that the child became very distressed and that the father returned the child to the mother’s home in an angry manner the same evening. I find that the father left the child at the house and on the evidence of the mother that the child knocked on the door and was shaking and crying when the mother opened the door.
…
237.I have made findings about the incident on 17 July 2015, set out previously. I am satisfied that this incident has contributed to the child’s fear of spending time alone with the father.
During the appeal hearing, the father was unable to identify a positive finding of child abuse in these paragraphs or anywhere else in her Honour’s reasons. As such, the basis of this ground was not established.
As part of this argument, the father contended that having regard to the consequences that flowed from the primary judge’s findings in relation to the 17 July 2015 incident, the primary judge failed to apply the correct standard of proof pursuant to Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”). In doing so, the father equated the seriousness of the primary judge’s findings in [203] and [204] to findings of sexual abuse. We note that proof of a fact in issue is determined by reference to s 140 of the Evidence Act rather than Briginshaw.
During the hearing of the appeal, the father sought to reframe ground 6 by challenging the findings of facts made by the primary judge regarding the 17 July 2015 incident on the basis that they were not reasonably open on the evidence. The primary judge’s remarks in the following paragraphs are relevant:
198.I accept the evidence of the mother, [Mr X] and [Ms M] previously outlined about what [the child] told them of the incident with the father which occurred on 17 July 2015.
199. I find that [the child] has given consistent accounts to the mother, the family consultant [Mr X] in August 2015, and the family consultant [Ms M] in February 2017 about the incident with the father in July 2015. The child’s account given to [Mr X] in August 2015 for his s 11F Memorandum was shortly after the incident and he interviewed the child for about an hour. I have placed considerable weight on that account which has been previously outlined. [Mr X] was cross-examined by counsel for the father in the Federal Circuit Court and the transcript was Exhibit J which is also previously referred to.
200. In the discussion with [Ms M] in 2017 almost two years after the incident the child referred to being pushed by the father onto her bed and she also referred to the father’s anger towards her which is consistent with her account to [Mr X] and her mother in July 2015.
Clearly, there was an abundance of evidence available to the primary judge on this issue. The father’s challenge to the primary judge’s findings of fact was essentially a complaint that the primary judge did not prefer his evidence. This is not an appealable error.
Ground 9
Ground 9 asserts that the primary judge erred by relying on material ruled inadmissible during the trial, namely a receipt of an iPhone purchased by the mother for the child. The father alleged that the mother had bought the iPhone before the s 11F interview to bribe the child.
There is no substance to the father’s complaint that the iPhone receipt was relied upon as evidence when it had not been admitted. To the contrary, it was admitted as Exhibit T on the fourth day of the trial.
The primary judge addressed the purchase of the iPhone at [96] of the reasons:
The father suggested to the mother that she had bribed the child with the purchase of a new mobile phone before the child spoke with the family consultant who compiled the s 11 F Memorandum in the Federal Circuit Court on 13 August 2017. The mother produced the receipt for the purchase of the mobile phone which was dated 21 July 2015 (Exhibit T).
The primary judge’s finding at [208], that “there is no evidence that the mother is responsible for influencing the child’s view of the father”, was clearly available on the facts. As such, there is no merit to this ground.
Conclusion
We find that none of the father’s grounds demonstrate appealable error. Accordingly, the appeal is dismissed.
Costs
As the respondent and Independent Children’s Lawyer did not participate in the appeal and there were no submissions as to costs, we make no order for costs.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Ainslie-Wallace & Aldridge JJ) delivered on 30 November 2018.
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