Canh & Canh
[2021] FedCFamC1A 36
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Canh & Canh [2021] FedCFamC1A 36
Appeal from: Canh & Canh [2020] FamCA 882 Appeal number(s): EAA 148 of 2020 File number(s): NCC 2413 of 2016 Judgment of: ALDRIDGE, GILL & HARTNETT JJ Date of judgment: 14 October 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal from orders permitting the mother to relocate but which did not alter time the children were to spend with the father – Actual bias and reasonable apprehension of bias alleged – Error asserted to arise from failure to admit evidence contained on a USB sought to be tendered at hearing – Whether mistake of fact as to where the parties were living prior to the mother’s relocation amounted to appealable error – Asserted failure to test evidence – No error demonstrated by the primary judge – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Evidence contained on a USB which was sought to be tendered at first instance – USB contained large amount of unidentified material –
Further affidavit relating to issues in dispute at first instance – Application dismissed.Legislation: Family Law Act 1975 (Cth) ss 93A, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Franklyn & Franklyn [2019] FamCAFC 256
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 383 ALR 446; [2020] HCA 35
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Number of paragraphs: 101 Date of hearing: 7 September 2021 Place: Sydney The Appellant: Self-represented litigant Counsel for the Respondent: Mr O’Brien Solicitor for the Respondent: Paul Bard Lawyers ORDERS
EAA 148 of 2020
NCC 2413 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR CANH
Appellant
AND: MS CANH
Respondent
ORDER MADE BY:
ALDRIDGE, GILL & HARTNETT JJ
DATE OF ORDER:
14 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 23 August 2021 is dismissed.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs fixed in the sum of $16,924.
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 Canh & Canh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, GILL & HARTNETT JJ:
INTRODUCTION
This is an appeal by Mr Canh (“the father”) from interim orders made on 18 September 2020 insofar as it resolved child related issues raised in an Application in a Case filed by Ms Canh (“the mother”) on 14 August 2020.
The interim proceedings the subject of the appeal took place in the context of the previous resolution of interim disputes between the parties in June 2018. Those previous orders provided that the parties’ two children who were born in 2011 and 2013 (“the children”) live with the mother, but spend substantial and significant time with the father in a nine-five split. The key issue agitated by the Application in a Case involved the mother’s proposed move with the children from the suburb where both they and the father then lived, on the Central Coast of New South Wales (“NSW”), to an area in the northern part of Sydney, approximately one hour’s travel away. The application sought no reduction in the time that the children would spend with the father, but sought a change in handover location, and an order granting the mother sole parental responsibility in relation to the selection of schools for the children.
THE PROCEEDINGS BEFORE THE PRIMARY JUDGE
The Application in a Case was dealt with on an urgent basis as part of a busy duty list. In calling the matter over the primary judge identified that the issues that would be dealt with were confined to the urgent issues of the mother’s proposed move with the children to Sydney, the related changes of school and handover venue, and school holiday related issues. The school holiday issues were not ultimately pressed.
The father indicated that he opposed the move. Insofar as the father pursued alternate orders, he was advised by the primary judge that such application would be dismissed for lack of procedural fairness as the father had provided inadequate notice of the pursuit of those orders. The father had, contrary to previous directions made on 22 July 2020 that required the response and evidential material to be filed by 2 September 2020, failed to file a Response to an Application in a Case until 18 September 2020, the day of the hearing.
The father was, however, not prevented from resisting the orders pursued by the mother and the primary judge permitted the father to rely upon his affidavit filed on 16 September 2020 as his evidence in opposition to the relief pursued by the mother in her Application in a Case.
When the matter subsequently came on for argument, the father orally pursued an order for equal time, as well as resisting the proposed move. As had been previously indicated to the father, his application, made as it was without sufficient notice, was summarily dismissed.
On the issue of the mother’s proposed move to Northern Sydney, the father contended that such a move would not be healthy for the children. The father accepted that this contention was reliant on his impression, asserting that there was “lots of evidence out there that suggests that moving kids from where they’re used to is not healthy for them” (Transcript 18 September 2020, p.23 lines 44–45), but failed to adduce evidence to support such a conclusion.
The father then contended that the move to live in a place an hour distant would cause a loss of the children’s connection to their current church, doctors, dentists and places that they attend locally.
The father submitted that that there would be a burden on the children imposed by the travel.
The father submitted that the mother could find work as a health professional in the local area, and hence implicitly that there was no need for the mother to move to Sydney to take up work as a lawyer.
The primary judge delivered judgment ex tempore. Relevantly, orders were made by the primary judge in the following terms:
1.The mother shall have sole parental responsibility in respect of decisions related to the school at which the following children are enrolled:
a) X, born … 2011; and
b) Y, born … 2013.
2.Order 8 made on 15 June 2018 is discharged upon the mother notifying the father in writing of her relocation of the children’s residence to the northern suburbs of Sydney and, in lieu thereof, the parties shall then respectively ensure the children’s exchange between them by:
a)Their collection from school whenever the children’s residence or expenditure of time with the party is to commence at or about the conclusion of school during school term;
b)Their return to school whenever the children’s residence or expenditure of time with the party is to conclude at or about the commencement of school during school term; and otherwise
c) D Area northbound on the expressway.
…
7. Otherwise:
a) The Application in a Case filed on 14 August 2020 is dismissed;
b)The Response to an Application in a Case filed on 18 September 2020 is dismissed; and
c)Any and all other outstanding applications for interim relief are dismissed.
These orders facilitated the mother’s move to the northern part of Sydney with the children, and their change of school.
THE APPEAL
By Notice of Appeal filed 16 October 2020, the father challenged the child related orders. Although the Notice of Appeal lacked clarity as to the basis of the challenge of the judgment, the father orally refined the grounds at the hearing of the appeal in the following manner:
(a)the primary judge was biased;
(b)the primary judge acted in a manner that raised a reasonable apprehension of bias;
(c)the primary judge erred in failing to admit into evidence a USB containing various documents at the hearing;
(d)the primary judge made an error of fact as to where the parties were living; and
(e)the primary judge failed to test the evidence.
Despite the late identification of the appeal grounds, the mother advised that she was in a position to answer the grounds as then identified by the father.
Application to adduce further evidence
By an Application in an Appeal filed 23 August 2021, the father sought to introduce evidence on the appeal. The father identified two items of evidence, being an affidavit sworn by him on 16 October 2020, and a USB containing a number of documents.
The power to receive further evidence is now contained at s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and, although structured slightly differently to the provision previously contained at s 93A of the Family Law Act 1975 (Cth) (“the Act”), works no difference to the operation or substance of the discretion to admit further evidence on appeal. It is a power described by the majority of Kiefel CJ, Bell and Keane JJ in Hsiao v Fazarri (2020) 383 ALR 446 at [43] that “exists to serve the demands of justice”.
The power was also described as “remedial” by the majority judgment in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ ”), which identified:
109.… Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.
The discretion to admit further evidence is focused on the capacity of the evidence to enable the appeal court to identify and correct error in the original decision. The majority in CDJ v VAJ identified that the exercise of the discretion will also be informed by factors such as whether the evidence was available to be obtained for the hearing under review, whether the material is admissible, whether the evidence is disputed, the availability of a further application at first instance, and whether the evidence is led for the purpose of securing a rehearing at first instance (at [114]–[115]).
Given the focus of the discretion it is incumbent upon a party seeking to adduce further evidence to identify how the proposed evidence demonstrates error in the original decision.
At the hearing of the appeal the father displayed some uncertainty and confusion about what was contained on the USB that he sought to have admitted, in particular, uncertainty about whether it reflected what he had sought to admit before the primary judge. This uncertainty emphasised the importance of the direction previously given to the father on 15 August 2021 to provide a schedule and index of the material sought to be admitted from the USB by 30 August 2021. The father did not prepare such a schedule, and so, while it could be seen that the USB contained a large number of documents, their significance was not apparent.
The USB contained a large number, in the order of hundreds, of documents. On their face a large number of them appeared to relate to the financial dispute between the parties, although were not restricted to such subject matter. Neither the documents, nor their significance was identified by the father, as the father failed to comply with the direction that was designed to facilitate such an analysis. Under those circumstances, the father has not demonstrated that the content of the USB is apt to demonstrate error, or that the USB should be admitted on appeal in order to remedy an error.
The father also sought to introduce on appeal an affidavit prepared shortly after the interim hearing, containing a combination of submissions, descriptions of events concerning the lodging of the Notice of Appeal, commentary by third parties as to the undesirability of the children moving, psychological reports procured other than in accordance with the single expert regime (and thereby inadmissible absent leave), an assertion of unparticularised prior contact between the primary judge and the mother when she was a law student, and other matters. Amongst those other matters was the assertion that one of the children had been crying as a result of the new orders preventing her from spending time with the father on a regular basis. It may be observed that such was not an effect of the orders.
The issue of the reception of this material needs to be determined in the context of what was being determined at the hearing now under appeal.
What was determined at the interim hearing by the primary judge was the contest as to whether the mother should be the subject of a restraint to prevent her from moving with the children to the northern part of Sydney, when such a move would not interfere with the time that the children would spend with the father pursuant to the then current orders. That determination was in the further context that the father’s application for a variation of those orders was summarily dismissed for reasons pertaining to procedural fairness.
The primary judge found that there was neither a juridical nor an evidential basis for the restraint, referring to cases such as AMS v AIF (1999) 199 CLR 160 and Franklyn & Franklyn [2019] FamCAFC 256 (“Franklyn”) (at [15]). In the latter case, the Full Court observed that:
27.There is an inherent tension between, on the one hand, separated parents being able to establish new homes wherever they like and, on the other, their restraint by injunction from living too far apart to avoid any impingement of their children’s ability to retain meaningful relationships with both parents. The conflict is between the best interests of the children to know and have regular personal contact with each parent and the interests of the parents to enjoy a high measure of freedom of movement which is not lost by reason only of their parental responsibility for the children.
(Citations omitted)
Against that legal background, the father seeks to introduce an affidavit that appears designed to bolster the father’s claims about the children being well-settled in the suburb in which the two parents had lived, and his claim that a move to Sydney was contrary to their interests. The matters addressed are considerations ancillary to the central issue of whether the relationship between the children and the father would be undermined by a reduction of time on the proposed move. The matters addressed are matters that were not amenable to resolution at the interim hearing, nor were they matters apt to be determinative at the interim hearing in the face of the articulation of the issue by the Full Court in Franklyn.
The father did not explain how the reception of this material would demonstrate error.
Further, no explanation was advanced by the father as to why the material was not obtained for the hearing.
These matters tell against the admission of the affidavit on appeal. Further support for the rejection of the affidavit, where it recasts the same case, may be derived from the High Court’s caution sounded in CDJ v VAJ, where, in observing the characteristics of the power to receive further evidence, it said:
111. … [I]t is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial.
Here the affidavit involves the mere recasting of the case that the father presented before the primary judge, on this occasion by the production of evidence that the primary judge identified was absent when the matter was argued before him. Reception of the evidence under those circumstances on appeal, particularly absent identification as to why the material was not obtained for the determination at first instance, has the effect that the High Court rejected as being that intended by the legislature.
The affidavit should not be received on the appeal.
THE GROUNDS OF APPEAL
As noted above, the father refined his appeal to five grounds.
The allegation of actual bias
The first ground was the assertion of actual bias by the primary judge. The father claimed that the primary judge had approached the case with a closed mind, and therefore had not acted with independence or impartiality.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), the majority of the High Court observed that:
3.Fundamental to the common law system of adversarial trial is that it is conducted by an independent and impartial tribunal.
The test for actual bias requires the father to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
In asserting actual bias therefore, the father carries the heavy factual burden of establishing that the primary judge was not impartial. To support this allegation the father relied upon a number of matters.
The father first asserted that the primary judge’s decision to permit the mother to move with the children to Northern Sydney and to amend parental responsibility was not a reasonable decision. In support of this, the father submitted that there was evidence that pointed to a different result. He contended that a decision that is not reasonable is biased.
In dealing with a similar argument in Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59, Kirby J, although in dissent as to the result in allowing the appeal, rejected the claim of actual bias that was reliant on the manner of the making of the decision, observing that:
99.The mere fact that a reviewing court does not agree with the reasoning of an administrative decision-maker, or regards such reasoning as illogical, irrational or even perverse, is not, in itself, sufficient to establish actual bias.
Even if the judgment could be described as unreasonable, the father’s proposition that an unreasonable judgment, in itself, establishes bias is plainly wrong.
The father secondly asserted that the primary judge’s failure to receive the father’s proffered USB into evidence, where it purportedly contained evidence that pointed against the judgment made by the primary judge also demonstrated bias.
For reasons that will be expanded upon later in the judgment, the primary judge’s exclusion of the USB cannot be described as an inappropriate exercise of his Honour’s discretion. The father’s attempt to tender the USB conflicted with earlier directions as to the filing of evidence, and the admission of it would have been unfair to the mother. The exclusion of the USB does not evidence a closed mind on the part of the primary judge.
Thirdly, the father asserted that there is evidence that the orders could cause more harm than good to the children, and that the primary judge did not consider that, which evidenced a closed mind.
Again, even if the primary judge’s determination of these issues was unreasonable, this is not a matter that of itself evidences bias.
Fourthly the father asserted that the “only thing [the primary judge] wanted to hear was the financial distress” of the mother and failed to look at the evidence in relation to it (Transcript 7 September 2021, p.13 lines 39–41). He asserted that this demonstrated a closed mind.
The primary judge’s reasonably benign comments as to the financial position of the mother were open to him on the evidence.
Even taking all of the above criticisms together, there is nothing identified to demonstrate unreasonableness, in the context of the conflicting cases presented by the parties, in the discretionary outcome arrived at by the primary judge. That being the case, even if actual bias could be sustained merely on the basis of the unreasonableness of the decision, unreasonableness is not established on this appeal.
Neither individually nor collectively do these matters evidence bias on the part of the primary judge. They do not even suggest that the primary judge came to the matter with a closed mind.
The assertion of a reasonable apprehension of bias
The second ground pursued by the father asserts a reasonable apprehension of bias.
In Ebner, Gleeson CJ, McHugh, Gummow and Hayne JJ explained that:
6.… [A] judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.
(Footnotes omitted)
Later in the case the plurality set out two steps to be followed in considering whether it is reasonable to apprehend bias. The first step is to identify what it is that is said might lead the decision maker “to decide a case other than on its legal and factual merits” while the second is to articulate “the logical connection between the matter and the feared deviation from the course of deciding the case on its merits” (Ebner at [8]).
The father correctly identified that the fair-minded lay observer is neither a lawyer, nor uninformed as to the law, and would consider the matter with a fair understanding of all the circumstances.
Here the father asserted a number of matters as bearing upon the issue.
The first aspect of his complaint arises from the transcript of the proceeding before the primary judge (Transcript 18 September 2020, p.19 lines 27–42), wherein an exchange occurred between the primary judge and the father. The father characterises the exchange as the primary judge comparing him, as a single father, to chocolate. The relevant comparison is extracted below:
HIS HONOUR: I don't want to sound heartless, but if the kids told you that they wanted to eat a block of chocolate and a tub of fairy floss every night, you would say no to them because you knew that wouldn't be in their best interests. So just because they tell you they want… to spend more time with you… doesn't necessarily…
The father described this comment as indicating an “unconscious bias” (Transcript 7 September 2021, p.21 lines 43–44) and demonstrative of a negative view of the father.
The primary judge emphasised that the point that he was seeking to make is that children will often tell parents that they want to spend more time with the parents and generally feel that way. He indicated to the father that the expression of such views by children did not necessarily see them being met. The point being made by the primary judge, in lay terms, was a reflection of the law in that while the views of a child are a consideration they are not a matter necessarily to be acceded to.
The example given by the primary judge reflected the non-binding nature of a child’s views. It did not describe either a parent or a father as a block of chocolate. Whilst it may not have gently made the point, it did not demonstrate an “unconscious bias” against the father, nor did it reasonably raise an apprehension of bias.
The second complaint related to a further exchange between the primary judge and the father (Transcript 18 September 2020, p.24 lines 10–20). There the primary judge advised the father that the mother was free to move and that the father would be unable to stop her from moving, for example, from where she lived at that point in time to a short distance away. This was a proposition with which the father asserted his immediate assent before the primary judge.
Before the appeal court, the father submitted that the primary judge making this comment to him was indicative of, or implied that, the primary judge thought that the father was unaware of such. He then characterised that as being a prejudgement on his part.
However, the primary judge’s description in no way constitutes a prejudgement of the father. In lay terms, to a self-represented litigant, the primary judge explained the applicable legal principle. Even accepting that the father was already aware of such, his Honour’s explanation to the father does not, either on its own, or in combination with the other factors, raise the spectre of a predetermined view of the father.
The third issue raised concerned the primary judge’s declining to make an order immediately increasing the father’s time with the children under circumstances where the father desired further time and the mother proposed that he should be given further time. Such proposal was articulated in submissions on behalf of the mother to the primary judge (Transcript 18 September 2020, p.27 line 25 to p.28 line 5).
The primary judge observed two matters immediately about the proposal. The first was that in dealing with a matter that had been urgently listed before him, engaged as he was in a busy duty list, there was no immediate necessity for him to deal with such a proposal. The primary judge was, within the context of limited hearing time, engaged with what was required to be dealt with urgently. That did not involve a fine tuning of the time with arrangements that could apparently be resolved consensually by the parties, without the intervention of the court. The primary judge identified that these were the reasons why he did not, at that time, and under those circumstances, deal with that interlocutory issue. The primary judge was at liberty to follow that course.
Noting that the primary judge suggested that the parties could resolve that issue without his intervention, declining to deal then and there with the issue did not raise, reasonably, an apprehension of bias against the father.
The last matter raised by the father concerned the proposition that there had been some form of student mentor relationship between the primary judge and the mother, a former student at J University.
Under circumstances where the father had made no application to the primary judge to disqualify himself, following the delivery of judgment the father quizzed the primary judge as to whether or not his affidavit had been read in completeness. The father suggested that his affidavit contained material about a potential conflict of interest within the Newcastle Registry of the Court about which the primary judge should have taken unspecified action. As to the nature of such previous interactions between the mother and the primary judge, the father asserted that the court had assisted the mother in her training and that “you also contributing to her learning” (Father’s affidavit filed 16 September 2020, paragraph 2).
In Ebner the majority observed, in relation to a claim of apprehended bias due to the association of a judicial officer with a party, or other beneficiary of litigation that:
30.… In each case, however, the question must be how it is said that the existence of the “association” or “interest” might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an “association” will not suffice to answer the relevant question.
It should first be observed that the affidavit does not make clear who the “you” was or whether that was a reference to the primary judge. Even if it was a reference to the primary judge there is no assertion of any contact or dealing of a nature that would give rise to a reasonable apprehension of bias. The alleged interaction is left without description.
The evidence did not identify the nature of any alleged interaction, and the father did not identify how that interaction raised a reasonable apprehension of bias.
In short, none of the matters identified, either taken individually or together, or even in combination with the matters raised in terms of the actual bias claim made by the father, are sufficient to meet the test for raising a reasonable apprehension of bias.
The failure to admit evidence
By his third ground, the father complains that the primary judge declined to accept into evidence a USB containing a large number of documents that he sought to tender into evidence at the hearing of the matter. The documents contained on the USB were the subject of attempts by the father to file on the portal, and then the USB itself was delivered to the Court.
That refusal to admit the USB into evidence comes in the context of procedural directions having been made in advance of the hearing, directing the parties as to the filing of evidence.
Orders were made by Registrar Jackson on 22 July 2020 directing the mother to file and serve an Application in a Case and one consolidated affidavit setting out the evidence she intended to rely on in support of their interim application.
The 22 July 2020 orders also directed the father to file and serve a Response to an Application in a Case and one consolidated affidavit setting out the evidence he intended to rely on in support of the response. Those documents were to be filed by 2 September 2020. The directions ensured that adequate notice of the material to be relied upon was provided both to the mother and to the Court.
However, the father did not comply with those directions, and filed a financial statement of substantial volume on 12 September 2020, and an affidavit also of substantial volume on 16 September 2020 (which was not available to the mother until the morning of the interim hearing). The father then also filed a Response to an Application in a Case on the day of the interim hearing on 18 September 2020.
During the hearing before the primary judge on 18 September 2020, the father sought to tender the USB as evidence in court. When asked by the primary judge whether he had provided the USB to the mother, he told the court he “made a copy to the solicitor … into their Dropbox” (Transcript 18 September 2020, p.16 lines 15–19). He explained he did this “probably two nights ago, within 48 hours” (Transcript 18 September 2020, p.16 line 23).
The primary judge dealt specifically with the refusal to admit the USB in the judgment at [6] where his Honour, rightly, observed that to be admissible the material needed to be demonstrably relevant and probative. Accepting that there may be some material of relevance within the USB, the primary judge made the global observation that the “largely unknown” content of the USB was not demonstrably relevant.
The primary judge, rightly, further observed that in addition to being admissible, in order for the USB to be fairly admitted into evidence, it was necessary that the content have been disseminated in a timely manner. It had not been.
The tender was rejected on both bases.
The challenge to the ruling by the primary judge should be rejected. The father was directed to file his trial material by 2 September 2020. He did not do so, and provided no adequate reason to explain why he had not. Disregarding the directions further, the father, within 48 hours of the hearing, deposited the unidentified content of the USB into the Dropbox of the mother and forwarded the USB to the Court. None of these steps were authorised by either a direction or the Family Law Rules 2004 (Cth) (as they then were).
The father’s serious non-compliance with the directions for filing, and his late attempt to rely on a large volume of material provided good reason to reject the tender. By this conduct, the father deprived himself of the opportunity to demonstrate the relevance of the material to the Court and deprived the mother of the ability to fairly deal with it, or even to make objections to its reception. The late production of the material also deprived the Court of any opportunity to evaluate the material as part of the interim hearing process.
No error has been identified in the primary judge’s approach to the rejection of the USB. Under the circumstances set out above it was properly within the discretion of the primary judge to reject the tender of the USB.
Mistake of fact
The father alleges that the primary judge was misled as to where the parties were living at the time of the hearing and mistook that factual matter, failing to recognise that the parties had been living in close proximity to each other.
This point was reliant, in part, upon exchanges between the primary judge and the parties.
When calling over the matter in the duty list to ascertain the scope of the dispute, counsel for the mother identified that a key underlying issue was the mother’s desire to move to the northern part of Sydney (Transcript 18 September 2020, p.4 lines 3–23). She correctly identified that the father lived halfway between Newcastle and Sydney. The primary judge, at that stage, misapprehended that the mother and the children were living in Newcastle, meaning that the move to Sydney would have no substantive impact upon the father. Counsel for the mother, at that stage, appeared to embrace that analysis.
However, when the matter came back before the primary judge for hearing the mother’s solicitor corrected the previous misapprehension (Transcript 18 September 2020, p.27 lines 1–31). She clearly identified that both parties lived on the Central Coast, proximate to each other, at Suburb K and Suburb G (apparently the same suburb), and hence there would need to be a change in the handover arrangements, although not a change in the time that the children spend with the father.
Accordingly by that stage of the hearing the primary judge was aware that the change proposed by the mother would have consequences in relation to the travel arrangements for the children.
The father, however, contended that the primary judge persisted in his misapprehension as to the proximity between the parties, despite the correction made by the solicitor for the mother. The father relies upon the primary judge’s description of the parties’ residences at [13] of the judgment, where he describes the father, correctly, as resident on the northern fringe of the Central Coast. The primary judge then described the mother as living, with the children, in southern Newcastle.
As identified by Wilson J in Mallet v Mallet (1984) 156 CLR 605 (“Mallet”) at 634, there is a strong presumption that a decision involving a discretionary judgment at first instance is correct. Drawing from Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627, that strong presumption may be overcome, and an appeal court may conclude that the judgment was wrong, where the grounds of review set out in House v The King (1936) 55 CLR 499 are established. One of those grounds is making a mistake as to the facts. It may be appreciated from this framework that the mistake of fact must be material in the sense that it was productive of error. That is, it must be an error that impacts the final result in other than a negligible manner.
The variable effect of factual error was described by Gibbs J in De Winter & De Winter (1979) FLC 90-605 (“De Winter”) at 78,092:
There are many other authorities ... that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of discretion of the primary judge.
Although Gibbs J was in dissent in De Winter as to the outcome, both Mason J who was in the majority and Gibbs J relied upon the materiality of the error. The correctness of Gibbs J’s recital of the law was subsequently confirmed by Mason J in Mallet (at 621–2).
The position, then, is that although a mistake of fact may identify error in the judgment, it does not do so if the mistake was immaterial, or of negligible bearing upon the judgment. Here the issue is whether the mistake was of a character that did not affect the result.
To the extent that the primary judge’s description was in error, in that it did not describe the parties as resident of the same suburb, it was not a mistake that was material to the outcome. The significance of the fact that the parties shared the same suburb was their close proximity at the time of the mother’s application, a situation that was to be altered by the mother’s proposed move.
While the primary judge did not describe the parties as sharing the same suburb, his description was of close proximity, Southern Newcastle and the northern part of the Central Coast being at worst proximate to each other, if not overlapping, a matter emphasised by the mother in her submissions (Mother’s Summary of Argument filed 19 August 2021, paragraph 41). Before this Court, the father was unable to identify that the description given by the primary judge was anything other than negligibly wrong.
The result is that the primary judge was aware, in determining the matter, that the children would move from a position where they were living close to both parents, to a position where the father would remain on the northern part of the Central Coast while they would live in the northern part of Sydney. Any mistake in expression made by the primary judge was not productive of error in the judgment, and so this ground fails.
Failure to test the evidence
The last complaint made by the father was that the primary judge failed to test the evidence. It has not been identified by the father in what manner the primary judge was to test the evidence that he relied upon, or how the primary judge failed to do so. No principle was identified that the primary judge failed to apply in the hearing of the matter.
This complaint did not attract a recognised basis for the review of a judgment. This ground of appeal fails.
CONCLUSION AND COSTS
It follows that the appeal will be dismissed.
The mother sought her costs of the appeal based upon the ground that the appeal was wholly unsuccessful.
The quantum sought was in the sum of $16,924, as set out in the costs schedule provided for the mother. The schedule identifies costs reasonably incurred in the preparation and conduct of the mother’s case, which was calculated at the time of its preparation pursuant to Sch 3 of the Family Law Rules 2004 (Cth), which is now Sch 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) (updated with increased amounts).
Although the father asserted some difficulty in respect of the payment of costs, his position was that he “suppose[d]” that he would have to pay if he was unsuccessful on the appeal (Transcript 7 September 2021, p.46 line 1).
The father has been wholly unsuccessful on the appeal, being a matter set out at s 117(2A)(e) of the Act that justifies the departure from the starting position set out at s 117 of the Act, that each party should bear his or her own costs. Accordingly, absent the specific identification of evidence bearing upon other considerations set out in s 117(2A) of the Act it is appropriate that the father pay the mother’s costs fixed in the sum of $16,924.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Hartnett. Associate:
Dated: 14 October 2021
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