Chard and Ye
[2018] FamCAFC 117
•28 June 2018
FAMILY COURT OF AUSTRALIA
| CHARD & YE | [2018] FamCAFC 117 |
| FAMILY LAW – APPEAL – PARENTING – Appeal against interlocutory orders and directions – Where there is doubt as to whether the orders and directions are decrees against which an appeal can be taken – Where, in any event, leave to appeal is required – Leave to appeal refused – Appellant to pay the costs of the respondent in a fixed sum. |
| Family Law Act 1975 (Cth) ss 60CC, 67ZBB, 69ZW, 94AAA(1A), 94AAA(3), 94A, 117(4)(a) Family Law Regulations 1984 (Cth) reg 15A Family Law Rules 2004 (Cth) Sch 3 |
| Daines & Daines (2014) FLC 93-585; [2014] FamCAFC 61 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Hart & Sellwood (2016) FLC 93-753; [2016] FamCAFC 254 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 |
| APPELLANT: | Mr Chard |
| RESPONDENT: | Ms Ye |
| INDEPENDENT CHILDREN’S LAWYER: | Strong Law |
| FILE NUMBER: | CAC | 1638 | of | 2016 |
| APPEAL NUMBER: | EA | 34 | of | 2018 |
| DATE DELIVERED: | 28 June 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 28 June 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 1 February 2018 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Curtis |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid ACT |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Wallis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Strong Law |
Orders
Leave is granted to the applicant to rely on the reasons for judgment of Judge Hughes of 4 November 2016.
The Application in an Appeal filed on 18 June 2018 is otherwise dismissed.
Leave is granted to the applicant to make an oral application for leave to appeal.
The application for leave to appeal is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $1,179.80.
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 Chard & Ye 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 34 of 2018
File Number: CAC 1638 of 2016
| Mr Chard |
Appellant
And
| Ms Ye |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Introduction
Mr Chard (“the father”) seeks to appeal against orders made by Judge Hughes on 1 February 2018 in parenting proceedings between him and Ms Ye (“the mother”). The interests of their daughter (“the child”), who was born in 2015, were represented by an Independent Children’s Lawyer (“ICL”).
This appeal is being heard by a single judge pursuant to a direction made under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
Background
On 30 November 2017 the primary judge made interim orders which provided for the child to live with the mother and to spend limited supervised time with the father. The matter was listed for an interim hearing, if possible, on 13 December 2017 to deal with three issues. The first was the ICL’s application for a litigation guardian to be appointed for the father. The second was the father’s application for unsupervised time. The third was a dispute as to what further material should be given to, and questions asked of, Dr R, the single expert psychiatrist who had prepared a report for the Court.
Evidently, these matters were not determined on 13 December 2017 because they were again before her Honour on 1 February 2018.
On 5 January 2018 the father filed an Application in a Case seeking interim parenting orders. It is useful to set out the orders sought in full:
1.In support of a change of Parenting Orders as detailed at para 50 of attached affidavit.
2.In enforcement of the rights/best Interests of the child, [B] to have a relationship with the applicant father, Mr [Chard] that is significant and meaningful.
3.That the matter, if not resolved at hearing on 1 February 2018 proceeds to a Final Hearing
4.That procedural matters outlined in the affidavit attached are bought to the attention of the Court
5.That the rights/best interests of the child, [B] are paramount in determining the matters of alleged domestic violence/abuse outlined in the attached affidavit.
Paragraph 50 of the father’s affidavit in support proposed interim orders for unsupervised time with the father, some holiday time and, in effect, equal shared parental responsibility. After a hearing in the ACT Magistrates Court which was to occur on 18 January 2018, the father proposed that the child live with him and spend supervised time with the mother “until a comprehensive plan can be set out detailing the way in which unsupervised time could occur for her moving forward”. In other words, the father sought, as an interim arrangement, the reversal of the then parenting arrangements.
On 29 January 2018 the father filed two Applications in a Case, together with a substantial supporting affidavit in each. One sought the removal of the ICL. The other sought the exclusion of Dr R’s report from the proceedings on the grounds that it was “unfairly prejudicial”, “misleading and confusing” and “use[d] material excluded from the proceedings”.
On 29 January 2018, the father also filed a Notice of Risk and a further affidavit.
The hearing on 1 February 2018 commenced with the primary judge receiving submissions on the father’s oral application which objected to documents voluntarily supplied to the Court by the ACT Civil and Administrative Tribunal (“ACAT”). Her Honour then heard preliminary submissions from the father on the application to exclude Dr R’s report and the application to remove the ICL. The primary judge did so because she said she wanted to gauge the nature of each case to see if it could be dealt with on that day. In each case, her Honour determined that she could not do so.
This led to the primary judge making the following orders:
1.The oral objection by the father to the material produced voluntarily by the ACT Civil and Administrative Tribunal (ACAT) is dismissed.
2.The proceedings are adjourned to 29 March 2018 at 10am for hearing of the following interim applications:
(a)the application in a case filed by the father on 29 January 2018 seeking the removal of the independent children’s lawyer;
(b)the application in a case filed by the father on 29 January 2018 seeking the evidence of Dr [R] be excluded in the proceedings;
(c)the application filed by the independent children’s lawyer on 26 October 2017 for a litigation guardian to be appointed for the father;
(d)the application filed by the father on 5 January 2018 for further parenting orders; and
(e)any application by the mother filed on or before 28 February 2018 for the tendering of an audio recording of an incident between the parties on 9 October 2016.
3.The parties each have liberty to issue more than 5 subpoenas.
4.Any material in response to the applications listed on 29 March 2018 shall be filed by 12 March 2018.
5.Any material in reply shall be filed by 22 March 2018.
6.Pursuant to section 69ZW of the Family Law Act 1975 ACT Child & Youth Protective Services (“the Agency’) shall provide to the Court within 28 days sufficient documents to indicate their involvement with the parties [Mr Chard] … and [Ms Ye] … and the child [B] born … 2015, … including copies of the following:
(a)any notifications to the Agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;
(b)any assessments by the Agency of investigations into a notification of that kind and the findings or outcomes of those investigations; and
(c)any reports commissioned by the Agency in the course of investing a notification.
7.The parties and/or their solicitors shall not issue any subpoena directed to the Agency without leave of the Court.
8.The matter is listed for final hearing for 5 days commencing on a date to be advised.
…
In addition to the last mentioned order, a number of directions were made in preparation for the final hearing.
Leave to appeal
Immediately, issues arise as to whether any of these orders is a decree within the meaning of s 94AAA(1A) of the Act. Section 4(1) of the Act defines “decree” as meaning a “decree, judgment or order” and includes “an order dismissing an application” and “a refusal to make a decree or order”. See also Daines & Daines (2014) FLC 93-585; The Commonwealth v Mullane (1961) 106 CLR 166; Tallant & Kelsey (2016) FLC 93-742; Hart & Sellwood (2016) FLC 93-753.
For reasons that will shortly become apparent, I do not need to determine this appeal on that basis, but I hold the view that the orders are not “decrees” as defined, against which an appeal can be taken. They do not determine any legal rights and may be varied at any time without an appeal.
The father submitted that there was a refusal to make a decree. That is, there was a failure to make the parenting orders sought by him in his Application in a Case. Clearly, her Honour did not make any orders determining the father’s application on 1 February 2018. Rather, her Honour took steps to fix that application for hearing. She therefore did not refuse to make the decree or order.
It is also apparent that each of the orders the subject of the appeal is an interlocutory order. They are procedural and listing orders which do not finally determine any rights. None is an order in relation to a child welfare matter and therefore leave to appeal is required (s 94A of the Act; reg 15A of the Family Law Regulations 1984 (Cth)).
The Notice of Appeal did not seek leave but the father has addressed submissions to this issue in his Summary of Argument, as did the mother and the ICL. I shall therefore take the father’s submissions to be an oral application for leave.
In determining an application for leave to appeal the Court will look to see whether the decision is attended by sufficient doubt as to warrant it being reconsidered and whether substantial injustice would result if leave was refused, supposing the decision to be wrong: Medlow & Medlow (2016) FLC 93-692. I shall deal with the issue of leave first.
In doing so, having regard to the nature of the orders the subject of the proposed appeal, I shall bear in mind the following comments made by Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec) (1946) 46 SR (NSW) 370 at 374 which were quoted with approval in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at [4]:
… there is a material difference between an exercise of discretion on a point of practice and procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
The grounds of appeal
In his Summary of Argument, the father raises the following challenges to the orders:
·Error of law and fact;
·Mistake of fact;
·Procedural unfairness;
·Judicial bias;
·Issues of credibility/words used; and
·Reading from a report objected to by the father.
It is obvious that the Summary of Argument does not follow the Grounds of Appeal. I will deal with the father’s challenges as articulated in his Summary of Argument.
Error of law and fact
The fundamental submission is as follows:
2.3The basis of the Appellant’s objection, is that not one of the Orders made on that day contain a direction or orders of the Court relating directly to the Appellant’s complaints against the Respondent in regards alleged domestic violence both against the child, who currently resides with the Respondent, and violence by the Respondent towards the Appellant when they resided together…
2.4The failure to attend issues raised by the Appellant that directly and could immediately affect the child in lieu of giving priority to the other multiple Applications in a Case, meant there has been scant regard for the safety and security of the child, no assessment of risk reported, unacceptable or otherwise, and that the Appellant did not have the chance to be heard on the issue of the alleged domestic violence at all.
Under the heading “Error of law/fact” the father submits that the primary judge “erred in not hearing alleged domestic violence issues” raised by his application filed 5 January 2018 or the Notice of Risk filed on 29 January 2018. He submitted that her Honour erred “in not discussing the Return of Child as the number one priority, need to protect the child from abuse, neglect or family violence”.
I note immediately that the application filed on 5 January 2018 did not seek the urgent return of the child – rather, it referred to a paragraph of the father’s affidavit which proposed unsupervised and holiday time.
The affidavit then went on to propose a very significant change in the care of the child from 18 January 2018. In that case, it may be considered that the father has sought a “return” of the child, although ordinarily that word refers to the return of a child to a person with whom the child was living.
The matter came on before the primary judge at 10.00am on 1 February 2018. After a short discussion, it was stood in the list. It resumed at 12.08pm and at 12.24pm was stood over to 2.15pm. Her Honour was not able to return to it until 3.00pm, which left little time to deal with a number of issues.
At the outset, the father raised the parenting issue in the following exchange:
[MR CHARD]: … But I believe that the –really the first matter should be the domestic violence. The welfare of my daughter is paramount.
HER HONOUR: One is the mother’s legal representative, and the other is the independent children’s lawyer. And if you object to the independent children’s lawyer, I need to deal with that. Don’t I. Because otherwise if you were successful, why would I be allowing someone who should not be part of the proceedings to continue to make submissions. You understand?
[MR CHARD]: This is a real complex mess, because - - -
HER HONOUR: Yes. There’s so many applications and crosscurrents in this matter.
[MR CHARD]: Yes.
HER HONOUR: I think I’m – I think the order – I’m going to deal with the subpoena first, then the ICL issue. I think the Dr [R] issue for various reasons won’t take long, and then the last issue is whether or not the time should change, but let’s just start at the beginning. So tell me why you object to the material voluntarily produced by ACAT?
This was the logical order in which to proceed because it would be desirable to identify the persons entitled to make submissions and the evidence before the Court prior to a consideration of substantive issues.
Contrary to the submission of the father, her Honour did not ignore the provisions of s 67ZBB of the Act – rather, it was applied. That section states:
67ZBBCourt to take prompt action in relation to allegations of child abuse or family violence
(1)This section applies if:
(a)a notice is filed under subsection 67Z(2) or 67ZBA(2) in proceedings for an order under this Part in relation to a child; and
(b)the notice alleges, as a consideration that is relevant to whether the court should make or refuse to make the order, that:
(i)there has been abuse of the child by one of the parties to the proceedings; or
(ii)there would be a risk of abuse of the child if there were to be a delay in the proceedings; or
(iii)there has been family violence by one of the parties to the proceedings; or
(iv)there is a risk of family violence by one of the parties to the proceedings.
(2)The court must:
(a)consider what interim or procedural orders (if any) should be made:
(i)to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii)to protect the child or any of the parties to the proceedings; and
(b)make such orders of that kind as the court considers appropriate; and
(c)deal with the issues raised by the allegation as expeditiously as possible.
(3)The court must take the action required by paragraphs (2)(a) and (b):
(a)as soon as practicable after the notice is filed; and
(b)if it is appropriate having regard to the circumstances of the case - within 8 weeks after the notice is filed.
…
The Court is required to consider what interim or procedural orders (if any) should be made to enable appropriate evidence to be obtained, deal with the issues as expeditiously as possible and make such orders as are considered appropriate. Importantly, the Court must also consider what interim or procedural orders are required to protect the child.
The order in which those tasks are to be undertaken will vary depending on the nature of the allegations of abuse or violence; the state of the evidence before the Court including, importantly, the nature and extent of the evidence supporting the allegations; whether the allegations are disputed; and, again importantly, evidence relevant to the best interests of the child including the evidence relevant to the s 60CC considerations.
The father’s Notice of Risk identifies the following asserted harm:
·The child witnessed the mother being violent to the father. The affidavit relied on by the father merely asserts that the child saw the mother “repeatedly physically abusing me”.
·The child was slapped and pinched by the mother. The affidavit makes clear that this was said to have occurred on a number of occasions.
·The child had injuries to a toe on her right foot. The affidavit asserts that the nail had been cut too short and that the toe was red, inflamed and sore.
I note that it is common ground that at least the first two allegations were before the Court on 4 November 2016 when the primary judge heard and determined an interim parenting application. Her Honour found that the best interests of the child were then served by the child living with the mother and spending time with the father as agreed by the parties in writing.
No doubt her Honour considered the matters raised in the Notice of Risk to be insufficient to justify a peremptory placement of the child with the father, having regard to the other issues remaining outstanding, including the father’s fitness to appear for himself or to look after the child. That was a course that was entirely open. Section 67ZBB does not mandate the making of determinations in any particular order, but only a consideration of what interim or procedural orders should be made.
Her Honour did take steps to deal with the issues expeditiously. That involved the early resolution of the outstanding interim applications, including unsupervised time with the father.
Her Honour was also very mindful of the desirability of having a final hearing sooner rather than later, as emerges from the following passage:
HER HONOUR: … what I need to do is list the matter for a final hearing so we can get on with hearing this, so I don’t intend to entertain that application until after I’ve made the determination about the independent children’s lawyer for a start, and also it was only filed on 5 January. But we – I’ve already made a determination about “until further order, this is the time that [B] is spending with you”.
[MR CHARD]: your Honour - - -
HER HONOUR: Did I make any - - -
[MR CHARD]: You invited me to make an application to have my daughter unsupervised.
HER HONOUR: Yes, I did actually. I remember that. Yes.
[MR CHARD]: And that’s what this is about.
As can be seen from that passage, the father’s pressing issue was unsupervised time, rather than what he described as the return of the child.
There is no basis for considering that her Honour’s approach to these matters was based on any error of fact or law.
Was there a mistake of fact?
The father submits that the primary judge erred by misinterpreting a police report of 9 October 2016 and thereby accepted the mother’s evidence that the father was violent.
The primary judge did not make any findings on 1 February 2018.
It is true that her Honour raised aspects of the mother’s evidence in seeking submissions from the father as to the relevance of the material produced by ACAT. However, that exchange included the following:
HER HONOUR: This is the thing. We’ve got your evidence. We’ve got the mother [sic] evidence. They’re quite different.
…
We are in the evidence-gathering phase …
Exploring the evidence to determine what further material should be gathered is quite different to making a finding, as the primary judge pointed out.
No error has been identified.
Was there a want of procedural fairness?
The father submitted that the primary judge “was biased under both the hearing rule judicially biased, used wording that … went to his credibility using language that was not neutral”. Additionally, her Honour is said to have erred by reading from Dr R’s report when it had been objected to and was not in evidence.
The primary judge read out part of Dr R’s report as an example of the difficulty posed by the evidence that would need to be resolved at a final hearing. It came with the caveat from her Honour that the father’s objection to the report was yet to be dealt with.
A trial judge, in the course of identifying the issues, is fully entitled to read from or refer to potential evidence in the case and especially to the report of a court-ordered expert. That does not mean that that evidence will ultimately be admitted or given any particular weight.
Again this is made perfectly clear by the following comments made by her Honour:
The report was obtained; you don’t like the report. I’m not surprised, given its content. It may be, as a result of cross examination of various things you put to Dr [R] that I put less weight on it – the 40 sorts of things you’ve said today. If Dr [R] says, “Yes. Okay. Yes. I agree I was a bit pushy with you and, yes, I can see that maybe you collapsed, you know, as a result of me just hounding you about things” – sure, the weight that is put on that report might be low. There might be other things that are put to Dr [R] which cause me to think that, in fact, the weight to be attributed to it is nil or low. It may be that I’m persuaded ultimately that it’s a very weighty piece of evidence. I just don’t know. I have to assess it at the time as a result of cross-examination and in light of all of the other evidence that will be before the court on that day.
The father asserts that the reference to being “a bit pushy with you” was a concession by the primary judge that she was aware of the pressure under which she had placed the father. It was no such thing. It was merely speculation as to what evidence Dr R might give. In the course of oral submissions, the father accepted this to be so.
Neither the reading from the report of Dr R or the matters raised by her Honour in relation to it bespeak error. The admission of the report into evidence and the weight to be attached to it, if any, remain to be determined.
As to bias, the father submitted that the following exchange demonstrates the bias:
[MR CHARD]: Your Honour, just on that point that you said that you’re making comments about that the mother has said. This folder here – that contains every affidavit that the respondent has filed and – with no evidence, and every affidavit says “I’m preparing letters and documents to hand up to the court as a tender bundle in support of this affidavit”. Now I have filed in this court nine inches thick of affidavits and what I consider to be probative evidence, and what has happened is – at no time has the defendant – has the respondent – every affidavit says “I’m preparing letters and documents to hand up as a tender bundle in support of this affidavit”. And it has never turned up. There has never been - - -
HER HONOUR: What I remember of the mother’s evidence is she says you were violent, you screamed at her, the child was present, you – various things that you did which were established to have in fact occurred, because you agreed that something of that sort had occurred, and there was police material filed and so on - - -
[MR CHARD]: Police evidence says that there was no offences committed, that they viewed the video – it’s on the police report – that they viewed the video, that there were no offences committed, there was no domestic violence, and they asked [Ms Ye], and [Ms Ye] says nothing else happened except for a bit of yelling, and that’s the police report.
HER HONOUR: Yes, but a bit of yelling was really extensive yelling and quite - - -
[MR CHARD]: No.
HER HONOUR: And the child wasn’t frightened, because she was inured to it, because it happened so often – according to the mother.
[MR CHARD]: That’s – no. No. That is - - -
HER HONOUR: This is the thing. We’ve got your evidence. We’ve got the mother evidence. They’re quite different.
When read as a whole, her Honour is merely testing the father’s submissions as to the relevance of the ACAT material by reference to the mother’s evidence. No indication was given as to whether the mother’s evidence was likely to be accepted.
There is no basis for thinking that a fair-minded observer might reasonably apprehend that her Honour would not bring an impartial mind to the resolution of the issues before her: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The same can be said about the comments made by the primary judge which the father submits indicate that an adverse opinion had been formed as to his credibility.
In addition to the passages already quoted, the father relies on the following comments of the primary judge:
So was it a lie to the Magistrate’s Court?
There have certainly been suggestions that you have not always been truthful.
This is a questioning and testing of the father’s case and not the indication of findings.
Similarly, there was no need for the primary judge to consider or refer to the father’s evidence as her Honour was not making findings or even conducting a parenting hearing. She was merely attempting to deal with the issues that were before her – the production of the ACAT documents, Dr R’s report and the application regarding the ICL.
Substantial injustice
I now turn to the issue of whether any substantial injustice would flow to the father if leave was refused. This involves a consideration of the orders made by the primary judge.
Order 1 overruled an objection by the father to the material produced by ACAT. Earlier that day her Honour made the following order:
The material voluntarily produced by ACAT shall remain in a sealed envelope in the Registry until the husband’s objection to the production of that material is determined.
Further orders permitted the parties and the ICL to have access to those documents. If and when any of these documents is tendered at a hearing, the father will be able to object to them and have that objection determined by the Court. The father has not identified any injustice that would flow from mere inspection (nor for that matter, did he address any submissions as to why the order for inspection was erroneous).
Orders 6 and 7 are directions made, pursuant to s 69ZW of the Act, to ACT Child & Youth Protective Services for the production of documents to the court. I did not understand why the father objected to this order or why it was said to have been wrongly made. In any event, the order is for production of documents to the court and does not necessarily mean that they will be tendered or received into evidence.
Orders 8 to 14 deal with the final hearing and its preparation. The father sought an order for a final hearing in his application of 5 January 2018. In other words, these orders give effect to an order actually sought by him.
It remains then to deal with orders 2 to 5 which are orders associated with fixing the following matters for hearing on 29 March 2018:
·Application for removal of the ICL;
·Application to exclude the evidence of Dr R;
·Application for the appointment of a litigation guardian for the father; and
·Application by the father for further parenting orders.
Even if the father’s contention that the primary judge erred by not hearing the parenting application on 1 February 2018 is accepted, the appeal is futile. No order can now be made that such a hearing not take place and that these matters be determined at an earlier date. In apparent recognition of this reality, the Notice of Appeal seeks the following orders:
1.That the issues of unsupervised time with the Appellant’s daughter, [B], is given priority.
2.That the issue of alleged domestic violence by the Respondent towards the Appellant is given priority over matters such as Removal of the Independent Children’s lawyer and whether the Single Expert Witness’s report is admitted. The child is living with the Respondent full-time.
3.That the Court of Appeal re-exercise the initial discretions of the current learned Judge in this case.
4.That consideration is given to appointment of a new Judge.
5.Any other Orders the Appeal Court orders.
I would observe first that in my opinion the primary judge is giving the best interests of the child priority, whilst having appropriate regard to the other applications that have to be dealt with. The parenting issue was listed on the first day that was available to the primary judge.
Secondly, this Court does not have the power to direct a trial judge as to how to conduct proceedings before them. Its role is limited to correcting error, if any is established, in decisions that have been given.
I would also point out that it was the father’s objection to the release of the ACAT material and his applications to remove the ICL and Dr R that complicated and delayed the proceedings.
All of these applications remain to be heard as soon as the primary judge can get to them, including the interim parenting issues. As I have already said, it is logical, if not essential, that those applications be determined prior to any final hearing or even any extensive interlocutory hearing.
I am not satisfied that there is sufficient doubt as to warrant reconsideration of her Honour’s orders. I am not satisfied that any injustice, let alone substantial injustice, would flow if leave was not granted, even if error was established.
By an Application in an Appeal filed on 18 June 2018, the father sought to adduce further evidence on the appeal. Neither the mother nor the ICL opposed the receipt of a copy of the reasons for judgment given by Judge Hughes on 4 November 2016 and it will be received. The father also sought to rely on an affidavit of his sworn on 19 April 2018. It appears to be in support of an application to have the primary judge disqualify herself. As such, it consists largely of submissions and assertions. It is therefore inadmissible and it will not be received.
I should add that taking all these matters into account, I am satisfied that this appeal is vexatious and an abuse of process.
The oral application for leave to appeal will be dismissed. As the appeal has been commenced without leave, for completeness, it should be dismissed.
Costs
The mother has made an application for costs in the sum of $1,179.80, calculated in accordance with Schedule 3 of the Family Law Rules 2004 (Cth).
The father opposes that order on the basis that he is in receipt of a disability pension, has considerable debts, is in dire financial straits and requires food parcels for his assistance. He accepts that he travelled overseas earlier this year, but he says that his costs for doing so was given to him by a friend and he only travelled overseas to visit a friend who was suffering a significant illness.
Against that, it must be said that this appeal ought never to have been brought. It is well established that impecuniosity is of itself not a bar to a costs order being made, because otherwise an impecunious litigant could litigate with impunity.
Having regard to the nature of my findings in relation to the appeal and the amount involved, accepting everything that the father says about his financial position, I am of the view that it is nonetheless appropriate to make the order sought.
I note that the ICL did not make an application for costs because she accepted that s 117(4)(a) of the Act precludes a costs order being sought when a person against whom the order is sought has previously received a grant of legal aid.
I therefore order the father to pay the mother’s costs fixed in the sum of $1,179.80.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 28 June 2018.
Legal Associate:
Date: 2 July 2018
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