Chafer & Quigley

Case [2021] FamCAFC 43

FAMILY COURT OF AUSTRALIA

Chafer & Quigley [2021] FamCAFC 43  

Appeal from: Chafer & Quigley [2020] FCCA 2682
Appeal number(s): EAA 153 of 2020
File number(s): PAC 6016 of 2016
Judgment of: RYAN J
Date of judgment: 1 April 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against orders made by consent and orders made by determination – Limitations on appeal from consent orders – Adequacy of reasons – Form of order for sole parental responsibility broader than intended – Application for property orders withdrawn – Appellant bound by conduct of trial – Discretionary judgment – Application to adduce further evidence dismissed – Appeal allowed in part – Applications for costs dismissed   
Legislation: Family Law Act 1975 (Cth) ss 60CC, 62B, 65DA, 93A, 102NA, 117
Cases cited:

Allan and Ors & Allan and Ors (2014) FLC 93-606; [2014] FamCAFC 162

CDJ v VAJ (No 2) (1998) 197 CLR 172; [1998] HCA 76

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Gilbert v Estate of the late Gilbert (1990) FLC 92-125; [1989] FamCA 95

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Robinson, R.J.B. and Willis, D.M. (1982) FLC 91-215; [1982] FamCA 16

Division: Appeal Division
Number of paragraphs: 37
Date of hearing: 24 March 2021
Place: Sydney
Counsel for the Respondent: Mr Greenaway
Solicitor for the Respondent: Phillip A Wilkins & Associates
Counsel for the Independent Children's Lawyer: Mr Reeves
Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers

ORDERS

EAA 153 of 2020
PAC 6016 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR CHAFER

Applicant
AND:

MS QUIGLEY

Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RYAN  J

DATE OF ORDER:

1 APRIL 2021

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.Order 16 made on 2 October 2020 be varied by inserting after the words “parental responsibility” the words “in relation to major long-term issues”.

3.Other than as provided for in Order 2 above, the appeal be dismissed.

4.The applications by the mother and Independent Children’s Lawyer for costs be dismissed.

IT IS NOTED THAT:

A.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under…

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Chafer & Quigley [2021] FamCAFC 43
Case
[2021] FamCAFC 43
Decision Date

CaseChat Overview and Summary

In the case before the Appeal Division of the Family Court of Australia, Mr Chafer sought to appeal against orders made by consent and by determination in the parenting case of Chafer & Quigley. The appeal was directed to the adequacy of the reasons provided for the consent orders, the form of the order for sole parental responsibility, and the withdrawal of an application for property orders. The court was required to decide whether the father's appeal was valid, whether further evidence could be adduced in support of the appeal, and whether costs should be awarded against the father.

The court found that the father's appeal against the consent orders was limited by the principle that a party is bound by the conduct of their case at first instance. As the father had not raised the issues in the primary proceedings, he could not do so on appeal. The court also found that the form of the order for sole parental responsibility was broader than intended and should be varied to include the words "in relation to major long-term issues." The court dismissed the father's application to adduce further evidence as it would impermissibly obliterate the distinction between a trial and an appeal. The court found that the father's grounds of appeal had not been made out and dismissed the appeal in part.

The court allowed the appeal in part and varied the order for sole parental responsibility to include the words "in relation to major long-term issues." The court dismissed the appeal in all other respects and dismissed the applications for costs by the mother and Independent Children's Lawyer. The court found that, although the father's poor financial circumstances were a relevant consideration, the mother and Independent Children's Lawyer had circumstances which justified an order for costs against the father. However, the court was satisfied that the father would suffer financial hardship if ordered to pay costs and dismissed the applications for costs.

Orders

Orders of the court

EAA 153 of 2020

PAC 6016 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR CHAFER

Applicant

AND:

MS QUIGLEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RYAN J

DATE OF ORDER:

1 APRIL 2021

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

2. Order 16 made on 2 October 2020 be varied by inserting after the words “parental responsibility” the words “in relation to major long-term issues”.

3. Other than as provided for in Order 2 above, the appeal be dismissed.

4. The applications by the mother and Independent Children’s Lawyer for costs be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that to the extent that the father seeks to advance arguments directed to the adequacy of the primary judge’s reasons for making the consent orders and, to facts directed to the merit of the consent orders, those arguments must fail. Application to adduce further evidence The father may well have anticipated this outcome and thus, he applied to adduce further evidence in the appeal. As the father correctly pointed out, unless his further evidence is admitted, a deal of the matters raised in his Summary of Argument would be unsupported by evidence. He categorised his proposed further evidence as:· new evidence around the events of Christmas 2020 and thus subsequent to the trial date; and· evidence available at trial but not relied on because “my lawyer had informed that it was not relevant” (Father’s affidavit filed 17 February 2021, paragraph 4(b)). As the father explained, “[n]ow I am self-representing and consider these pieces of evidence to be important in establishing any appealable error in the judgement from the hearing” (Father’s affidavit filed 17 February 2021, paragraph 4(b)). The father also seeks to adduce evidence which was placed before the primary judge but which faded into insignificance when he withdrew his property application and agreement was reached on most parenting matters. On the father’s approach, s 93A(2) of the Act would be invoked in a manner which would impermissibly obliterate the distinction between a trial and an appeal (CDJ v VAJ (No 2) (1998) 197 CLR 172). Furthermore, it would offend the principle that a party is bound by the conduct of their case and, where a point is not taken at first instance, subject to exceptions which for present purposes are irrelevant, it cannot be taken afterwards on appeal (see Metwally v University of Wollongong (1985) 60 ALR 68; Coulton v Holcombe (1986) 162 CLR 1 at 7). On the application of these principles, the application to adduce evidence which predates the commencement of the trial should be refused. Evidence filed but not relied on at trial must suffer the same fate. As to documents which form part of the trial record, as it already forms part of the evidence, the application that it be received as further evidence is otiose. The remaining further evidence concerns the parties’ agreement to change Christmas arrangements last year. If admitted, this evidence would establish that, by agreement, the child had a longer period with the father than the orders provided. According to the father this evidence would establish that the mother does not value Christmas as he does and thus the primary judge erred by not ordering that the child spends time with him every Christmas Eve. Not only is the evidence unpersuasive of the point, as its admission would require a retrial albeit limited in scope, the evidence will not be admitted. It follows that the father’s application to adduce further evidence in the appeal will be dismissed in its entirety. The effect of this is that the father’s grounds of appeal addressed to the consent orders have not been made out.Contentious orders

Decision

Reasons for decision

The effect of these matters is that the various challenges to the contentious orders have not been established.CONCLUSION AND COSTS The father has failed to establish error and other than in relation to Order 16, the appeal will be dismissed. In these circumstances, the mother and ICL seek costs against the father in the amount of $3,960 each. This modest sum reflects the Legal Aid rate. Although an order for costs of the ICL would be appropriate, by s 117(4) of the Act, where the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a portion of the costs of the ICL, the court must not make an order for costs against that party. I am so satisfied and the order sought by the ICL will not be made. As to the mother’s costs, although there are circumstances which plainly justify an order for costs against the father, greatest weight is given to his poor financial circumstances and the order sought will not be made.

Ratio Decidendi

Legal Principle Established

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