Chafer & Quigley
[2021] FamCAFC 43
•1 April 2021
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of reasons – Form of order for sole parental responsibility broader than intended – Application for property orders withdrawn – Appellant bound by conduct of trial – Discretionary judgment – Application to adduce further evidence dismissed – Appeal allowed in part – Applications for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 2016APPEAL 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 the pseudonym Chafer & Quigley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RYAN J:
By Notice of Appeal filed on 30 October 2020, Mr Chafer (“the father”) appeals orders made on 2 October 2020 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The orders relate to the parties’ daughter [X] (“the child”), who was born in 2015. Of these orders, Orders 1–15 inclusive were made by consent. Orders 16–22 reflect the primary judge’s determination of issues that remained contentious at the conclusion of a three day hearing.
At the time of trial, the child was a few months shy of her fifth birthday. She has lived with her mother, Ms Quigley (“the mother”) since September 2017 [14]. Not without some difficulty, various interim orders were made by consent which saw the child continue to reside primarily with the mother and, from 19 March 2019 for the child’s regular time with the father to be increased to two nights per fortnight [20]. By when the trial commenced the parties were agreed that the child should spend regular overnight time with each parent. However, they each wanted the child to live primarily with them. The father proposed equal shared parental responsibility with which, at the commencement of the trial, the mother agreed. However, this agreement was not formalised and after the father gave evidence, the mother amended her application so as to be given sole parental responsibility for the child.
The mother who is a citizen of Country C, wanted to be able to take the child to Country C, where the mother grew up and her family lives. In 2009, the mother moved to Australia and in 2016 she was conferred with permanent residence of Australia. Although the father understands the mother’s desire to take the child to Country C, he argued that the risk that the mother would retain the child abroad was too great for that outcome to be in the best interests of the child. Christmas Eve arrangements also required determination.
Stated broadly, the consent orders provide that the child lives with the mother (Order 1), from December 2020 the child spends time with the father four nights per fortnight during school term, half school holidays and on certain special dates (Orders 2, 3, 5 and 6). These orders were supported by the Independent Children’s Lawyer (“ICL”) appointed to represent the child’s best interests.
Again, stated broadly, the issues which required adjudication resulted in orders that the child spend from 9.30 am Christmas Eve to midday Christmas Day with her parents on an alternating year basis (Order 17), that the mother have sole parental responsibility for the child (Order 16) and, the child be removed from the Family Law Watch List and each parent be permitted to travel abroad with the child upon certain conditions (Orders 18–21).
Order 22 removes all outstanding issues from the list of cases awaiting finalisation. The father appeals from that order as well. That order concerns the father’s application for property settlement orders (that the mother pay him $50,000) which was withdrawn shortly before closing addresses commenced (Transcript 21 August 2020, p.152). Given that the father was unable to identify any property against which an adjustment could be made, the decision to withdraw the application appeared eminently sensible. Furthermore, in his Case Summary Document filed prior to the trial, dated 13 August 2020, the father indicated that he would not pursue his application for property settlement orders at the forthcoming trial, which he did not. It is uncontroversial that on 21 October 2019, an order was made pursuant to s 102NA(2) of the Act preventing either party from personally cross-examining the other party. The father then secured legal aid assistance, whether by way of a grant of legal aid or pursuant to the scheme established in relation to the cross-examination is not clear, but whichever it was, it did not provide him with representation in relation to his property application. Although this would explain why the father elected not to proceed with his property application and perhaps why it was ultimately withdrawn, the primary judge was not required to question the father’s decision to withdraw his application communicated through his counsel.
Properly understood, the challenge made against Order 22 devolves to a complaint, that on the Court’s own motion, the withdrawn application should have been adjourned. Although the father regrets his decision to withdraw, the primary judge cannot have erred by failing to consider an application which she was not asked to determine. Nothing more needs to be said on this point.
The mother and the ICL seek to uphold the judgment.
Pursuant to s 94AAA(3) of the Act the Chief Justice directed that the appeal be determined by a single judge.
An application by the father filed on 17 February 2021 to adduce further evidence in the appeal, which the mother and the ICL oppose, must also be considered.
THE GROUNDS OF APPEAL
It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
The father presented three grounds of appeal, which when considered in conjunction with his Summary of Argument filed on 17 February 2021 assert that the primary judge erred:
·by failing to consider all relevant evidence in formulating the parenting orders made by consent as well as those not made by consent (Ground 1);
·in failing to take into account that the family report was incomplete and perceived bias of the ICL (Ground 2); and
·by failing to consider the father’s property settlement application and, in the parenting proceedings, evidence adduced in the property proceedings concerning the mother’s gambling and how this might affect her willingness to return to Australia (Ground 3).
Consent Orders
The father’s appeal was listed before me on 17 December 2020 to address procedural matters. Because the father was self-represented, I took the opportunity to explain that particular issues arise for an appellant where the orders under appeal were made by consent. Those limitations were discussed in general terms and the father was encouraged to take advice on the point. It is not known whether he did so and ultimately, that is a matter for him. He did, however, have the benefit of seeing counsel for the ICL’s summary of argument on the point well in advance of the appeal.
In Allan and Ors & Allan and Ors (2014) FLC 93-606 the Full Court explained the approach to an appeal against orders made by consent as follows:
63.The fact that an order is made by consent does not, of course, make the order of any different nature from an order made otherwise. The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties. Therefore, save for an important qualification, an order made by consent may be the subject of an appeal in the same way as any other order (see Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77-839).
64.However, the “important qualification” referred to in Gilbert is of present significance: the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence, or the absence of jurisdiction.
See also Robinson, R.J.B. and Willis, D.M. (1982) FLC 91-215.
This means that having consented to Orders 1–15, the father cannot challenge the merit of these orders in this appeal. Moreover, as the orders were made by consent, the primary judge was not required to traverse the evidence adduced in relation to issues that were no longer controversial. In this regard it is noteworthy that that parties were represented by counsel throughout the trial and when the primary judge was invited to make the consent orders. A review of the trial transcript demonstrates that this was a conventional trial, albeit conducted remotely during the current pandemic. On those occasions when counsel sought an adjournment to clarify instructions, the request was granted; the point being notwithstanding logistical issues all parties and counsel were fully engaged in the trial process. Furthermore, as the primary judge moved through each of the orders to be made by consent, the father’s consent was given. True it is that his consent was given through counsel, however, as counsel for the ICL submitted, it is revealing that the father at no stage sought to question what was said on his behalf. In short, there is nothing in the trial transcript that gives rise to any concern about the integrity of the father’s consent or the process by which the consent orders were entered.
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
Turning now to parental responsibility, the father argues that undue weight was given to his opinion of the mother and relevant ss 60CC(2) and (3) considerations were overlooked. He also says the trial reasons are inadequate. Counsel for the mother described the trial reasons on this point as “laconic”, which it was explained, meant they were light but nonetheless adequate.
Having correctly identified the statutory framework by which parenting orders are determined [21]–[29], the primary judge then addressed the allocation of parental responsibility. The presumption of equal shared parental responsibility was uncontroversially rebutted [35]. In deciding what form of parental responsibility would best promote the child’s interests, the primary judge focussed on how the parties would manage an order for equal shared parental responsibility compared to sole parental responsibility in favour of the mother. The father’s evidence that he does not respect the mother was given significant weight, as was his evidence that even if an order for equal shared parental responsibility was made, he would want to “make the final decision” [31]. On the other hand, the primary judge was satisfied that the mother would genuinely consult the father about matters of long-term importance. Albeit, the primary judge was concerned that, in the face of the father’s intransigence, the mother “was likely to agree to the father’s suggestion” irrespective of whether she believed so acting would be in the best interests of the child but to avoid ongoing disputation with him [33].
The father says that in coming to these conclusions, the primary judge failed to take into account evidence of numerous occasions when the parties had agreed about major issues concerning the child. This submission misstates the trial reasons and it is clear these matters were addressed at [34] “as they have to date”. Thus, although the primary judge understood the parties’ record of agreements about the child, in predicting the future, other matters were taken into account. This included her Honour’s impression of the father as to his attitude towards the mother. In this respect, as the trier of fact, the primary judge had an obvious advantage to which this Court must give due deference.
Furthermore, as has already been mentioned, the primary judge was confident that if the mother was given sole parental responsibility in respect of any long-term issues for the child, the mother would genuinely consult the father and thus, the child would continue to have the benefit of his input in relation to such issues.
Although the finding at [30] that the father “cannot treat [the mother] with respect because he has no respect for her” misstates the father’s evidence, there is ample evidence of the father using derogatory, indeed abusive, language towards the mother which showed him treating her with great disrespect. The error, therefore, is of no consequence.
The father listed various ss 60CC(2) and (3) factors which he said should have been considered in making the decision as to parental responsibility. Suffice to say these matters were not raised below, properly so, and the primary judge did not err in failing to address this question in the manner now argued on appeal.
The challenge raised against the order for sole parental responsibility has not been made out. However, the order gives the mother sole parental responsibility in every respect. It goes much further than the primary judge intended and is inconsistent with the trial reasons. The primary judge said at [37] “it is in the child’s best interest for the mother to have sole parental responsibility for making decisions in respect of any long-term issues for the child”. Rather than return the matter to the primary judge where the order might be rectified pursuant to the slip rule, in the interests of judicial economy, the appeal will be allowed in part and the order as to parental responsibility (Order 16) will be varied so that it only applies to major long-term issues.
The next challenge concerns the child’s removal from the Family Law Watch List and orders which enable the mother to take the child abroad. The primary judge acknowledged the father’s concern that the mother does not own property in Australia and she has “strong familial ties overseas” [39]. However, in deciding that the mother is not a flight risk, greatest weight was given to the mother having lived in Australia “for many years” and her evidence that she “intends to remain living in Australia” which is where she wants the child to be raised [39]. Based on the mother’s extensive history of gambling, which was amply traversed at trial, the father contends that the primary judge should have found there is an appreciable risk that the mother will flee Australia to avoid gambling debts. However, the primary judge was not asked to make this finding and at trial, the mother’s gambling was raised in the abandoned property proceedings and to support a finding (not made) that the mother might not be able to meet the child’s financial needs. Given that the father does not pay child support, the latter submission in somewhat hypocritical. Irrespective, the primary judge cannot have erred by failing to make a finding she was not asked to make.
As has already been mentioned, the primary judge did not overlook the mother’s strong familial ties in Country C. In his challenge to this order, the father paid particular attention to the mother having an adopted child in Country C. No doubt the primary judge had this child in mind when the mother’s strong family ties were mentioned. It was not necessary for individual family members to be identified. However, it needs to be understood that the mother adopted her cousin’s child shortly before the mother left Country C. The adopted child lives with the mother’s parents and has never lived with the mother. In other words, whatever the strength of the mother’s ties to her adopted child are, they did not result in the mother bringing the child to Australia nor draw the mother back to Country C. The primary judge did not need to give this matter specific attention and it was sufficient for it to be dealt with in the broad findings already referenced.
Turning now to Christmas Eve and Christmas Day, the primary judge determined these should alternate between the parties. The father’s traditional Christmas celebration on Christmas Eve was understood as was the mother’s desire to have the child wake in her home on Christmas morning to a pile of presents. The orders were seen to strike a fair balance and to give the parents and child the opportunity to enjoy Christmas together. This was the quintessential exercise of judicial discretion and, even if others may have decided the question differently, that is no reason to disturb the decision. It is not suggested that others are likely to have taken a different views of the facts and the point is made to highlight the discretion reposed in the primary judge.
The only other matter which requires consideration is the complaint made in relation to the family report and asserted bias of the ICL. If the father believed the family report was incomplete and further investigations by the family consultant were required, it was incumbent on him to raise that matter in the court below. It was not the ICL’s responsibility to do so for him. It is too late to raise that issue and insufficient foundation for the assertion of bias.
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.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. Associate:
Dated: 1 April 2021
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