Collins and Ricardo (No 2)
[2015] FamCAFC 77
•7 May 2015
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO (NO. 2) | [2015] FamCAFC 77 |
| FAMILY LAW – APPEAL – CHILDREN – Bests Interests of a Child – Where the appellant father was self-represented – Where the trial judge found that the child’s best interests are served by the child’s current living arrangements and place of residence – Where the appellant argues error in the exercise of the primary judge’s discretion – Where the appellant argues lack of procedural fairness and judicial bias –Where the appellant’s grounds of appeal and accompanying summary of argument is prolix and difficult to understand – Where the grounds of appeal and accompanying summary of argument raise no errors of law – Whether the trial judge erred in the exercise of discretion – Whether the trial judge failed to accord natural justice – Where the grounds of appeal and accompanying argument raise no appealable error – Appeal dismissed. FAMILY LAW – APPEAL – Application to adduce further evidence – Where the appellant filed five applications in an appeal to adduce further evidence – Where the appellant insisted that court recordings, rather than court transcript would better illustrate his case – Whether the fresh evidence should be adduced according to the principles in CDJ v VAJ (1998) CLR 172 – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Bartlett and Bartlett (1994) FLC 92-455 CDJ v VAJ (1998) 197 CLR 172 Forbes & Bream [2008] FamCAFC 189 Johnson v Johnson (2000) 201 CLR 488 Kioa v West (1985) 159 CLR 550 Neil v Nott (1994) ALR 148 Re F: Litigants in Person Guidelines (2001) FLC 93-072 SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 668 |
Stead v State Government Insurance Commission (1986) 161 CLR 141
| APPELLANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| INDEPENDENT CHILDREN'S LAWYER: | Jennifer Weate |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| APPEAL NUMBER: | EA | 15 | of | 2012 |
| DATE DELIVERED: | 7 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Murphy & Tree JJ |
| HEARING DATE: | 15 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 January 2012 |
| LOWER COURT MNC: | [2012] FamCA 11 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Autore |
| SOLICITOR FOR THE RESPONDENT: | Autore & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Jennifer Weate & Associates |
Orders
Save to the extent of allowing the receipt of the further evidence comprising a portion of the audio recording of the hearing referred to in the reasons herewith, each of the five Applications in an Appeal filed by the appellant father on 30 June 2014; 30 June 2014; 27 July 2014; 19 August 2014 and 19 August 2014 is dismissed.
The appeal be dismissed.
The appellant father pay within 28 days of the date of these Orders the costs of the respondent mother of and incidental to this appeal in an amount agreed in writing between the parties or, failing agreement, in such amount as is assessed.
The appellant father pay within 28 days of the date of these Orders the costs of the Independent Children’s Lawyer of and incidental to this appeal fixed in the sum of $4,000 including GST.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 15 of 2012
File Number: SYC 4959 of 2009
| Mr Collins |
Appellant
And
| Ms Ricardo |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
After a short relationship which subsisted for about two years, Ms Ricardo (“the mother”) and the parties’ child S (“the child”), then a baby, born in 2008, relocated in about August 2009 from south of Sydney to Western Australia. That move was preceded a few months earlier by the mother obtaining an apprehended violence order against Mr Collins (“the father”). The mother’s move to Western Australia facilitated a relationship with a Mr W.
The father’s primary contention at trial before Watts J was that the mother should relocate with the child back to an area south of Sydney where he would share parenting duties equally with the mother. The mother proposed that the child remain with her in Western Australia and that the child have no contact with the father. She contended that the father was violent and abusive. The father contended that the mother had fabricated allegations of violence against him.
In broad terms, his Honour ordered that the mother should have sole parental responsibility for the child, that the child should live with the mother and that the father should see her for two periods of two hours on two consecutive days each year at each of a contact centre in the relevant Western Australian city and south of Sydney.
The father appeals these orders, and the mother opposes that appeal.
The Appeal is Otiose
The father represented himself before the trial judge and at the hearing before us and prepared his grounds of appeal and summary of argument himself. On numerous occasions throughout the course of the proceedings before his Honour (and again before us), the father was at pains to assert his consequent disadvantage. We are, of course, acutely cognisant of the difficulties that self-representation can create for litigants.
Citing Neil v Nott (1994) ALR 148 at 150, counsel for the Independent Children's Lawyer (“ICL”) characterised the trial proceedings as falling into the category of case in which, “…because of garrulous or misconceived advocacy by the father the substantive issues were either ignored, given little attention or obfuscated”. Our reading of the transcript reveals that the point is well made. It is also true of the proceedings before this Court.
That circumstance was significantly added to before us by reason of the father’s five Applications in an Appeal and his written summary of argument referring to proceedings not before the primary Judge, and the reference in each to circumstances allegedly arising since his Honour delivered judgment. Those circumstances also form the foundation of fresh proceedings initiated at first instance by the father. Those proceedings deal with (among other things of course) the allegations at the heart of many of the applications in an appeal before us.
Further, if the father’s appeal succeeds, those very matters, or more accurately, the complex and contested nature of them, would see as inevitable the remittal of the matter to a trial judge for re-hearing (see Allesch v Maunz (2000) 203 CLR 172). The trial process that would be the consequence of that remittal is identical with that which is currently in train by the father’s fresh application.
As a consequence, the father’s appeal, even if it has merit (which it does not) is otiose. It should be dismissed for that reason alone.
However, we consider that the father’s assertions of actual or apprehended bias on the part of the trial judge, and his assertions of a lack of procedural fairness in the trial process should, particularly in light of his self-representation, require that we still address his appeal.
The Parties’ Parenting and Litigation Histories
Before dealing with the challenges encompassed by the grounds as ultimately argued, it is necessary to explain both the complex history of each of the parties’ relationships and their litigation history.
The Father’s Prior Relationships and Parenting
The father had three children with a Ms D. At the time of the hearing before his Honour, they were aged about 29, 26 and 19. Those children and their mother allege years of physical and mental abuse by the father, leading to the children’s eventual estrangement from him. His Honour found:
47.… The father views hitting [one of those children] with a hairbrush and kicking [another of those children] in the backside as lawful chastisement. The father’s inflexible way of looking at particular events makes it difficult to accept at face value his rendition of what happened on particular occasions.
In 2007, shortly prior to the commencement of the father’s relationship with the mother, he had another child, C, who was the product of a relationship with a Ms F.
Ms F’s child of a previous relationship, to whom child C is a sibling, was very seriously injured while in Ms F’s care. It seems that this circumstance has given rise to separate proceedings in the courts of the State which, his Honour was told, have occupied 18 sitting days. The broader circumstances of that relationship have given rise to proceedings in this Court which, at the time of the trial before his Honour had occupied some 16 days.
Ms F gave evidence that can be seen to be adverse to the father in these proceedings. His Honour records:
74.[Ms F] has been involved in 34 days of unfinished litigation with the father relating to their son [C]. I treat with some caution the evidence that she gives against the father. I also treat with at least the same caution, evidence that the father gives against [Ms F].
The Mother’s Prior Relationships and Parenting
Before commencing a relationship with the father, the mother was married to Mr B. The marriage produced two children aged about 17 and 11 years at the date of the instant trial. The father contended before his Honour that the mother travelled to Brazil with the child Z, the younger of those two children, without Mr B’s authorisation or permission.
The father subpoenaed Mr B to give evidence on his behalf. His Honour records at [59] that “[t]he basic reason why the father wanted to call Mr [B] was to establish that the mother had made allegations about certain matters against Mr [B] which Mr [B] was saying were untrue and those allegations were similar to those made in this case by the mother against the father”. His Honour said that Mr B gave evidence, “some of which assisted the father, some of which did not” and observed:
60.In fact, Mr [B] gave some damning evidence against the father. He said that the separation between Mr [B] and the mother was amicable until the father’s relationship with the mother, when the mother demanded increasing time with the children, and while the mother rarely appeared in court, the father talked on her behalf as a friend of the court. Mr [B] was of the opinion that the change in the mother’s approach to the litigation was as a result of the father’s involvement in the litigation.
Many of the very many applications made by the father during the course of the nine-day trial before his Honour were devoted to the father seeking access to, and inspection of, the court files pertaining to the parenting proceedings between the mother and Mr B. The father based much of his cross-examination of the mother on the contents of these files. It will be seen that this issue occupies a significant place in this appeal.
As has earlier been referred to, the mother’s case before his Honour centred on the relationship she then had with Mr W in Western Australia. It seems uncontroversial that this relationship came to an end not long after the making of his Honour’s orders. It seems that the father contends that Mr W will give evidence on his behalf in the fresh parenting proceedings initiated by the father.
Applications in the Appeal
The father filed five Applications in an Appeal:
1.An application filed on 30 June 2014 to adduce “further documentary evidence” contained within contentious appeal books.
2.A further application filed the same day to “include additional documents in my Contentious Appeal Books” and “the Audio transcripts of the hearing before Justice Watts (and that the application be heard by telephone …”;
3.A further application filed on 27 July 2014 to “allow to include documents to Adduce Evidence in my Contentious Appeals Books (and that the application be heard by telephone);
4.An further application filed on 19 August 2014 to “… allow the playing of relevant portions of the audion (sic) transcripts of Justice Watts … as evidence in my appeal” and to “… accept my 28 page Summary of Argument as I only have permission for a 24 page Summary of Argument”;
5.A further application also filed on 19 August 2014 to “… include additional documents to Adduce Further Evidence in my Contentious Appeal Books” (and for the application to be heard by telephone.
(Errors in original)
All applications were opposed by the mother.
All of these applications are in substance applications to adduce further evidence (s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”)). The principles in respect of the receipt of additional evidence before this Court are well established (CDJ v VAJ (1998) 197 CLR 172) and, in the ordinary course of events would not need to be repeated. However, in light of the father’s self-representation and because his Applications manifest (as is understandable from a person not legally trained) a lack of understanding of them, we repeat some salient passages from the majority judgment of McHugh, Gummow and Callinan JJ in that case (at 217-218):
149In exercising the discretion to receive the further evidence in this case, the Full Court had to bear in mind the purpose to which that evidence was directed. That purpose was to provide the evidentiary ground for setting aside the order of the primary judge and ordering a new hearing of the husband's application, it being common ground that, if the appeal should be allowed, the Full Court could not determine the matter. The Full Court also had to bear in mind that, in the context of a case such as this one, the relevant purpose of s 93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order. The second was that the best interests of the children required rehearing of the husband's application, notwithstanding that all members of the family would likely suffer stress, inconvenience and uncertainty as the result of a new hearing. In that context, the financial cost of a further hearing and its impact on the family could not be ignored.
150In some exceptional cases — those concerned with allegations of physical or psychological abuse of a child are an example — it might arguably be a proper exercise of discretion for the Full Court to admit further evidence and order a new hearing even though it is not reasonably satisfied that the evidence would have produced, or at a new hearing would now produce, a different result. In such cases, it may be enough that the court thinks that there is a very real risk, although not a probability, that the current order may actually endanger the child. The consequences for the child may be so grave that arguably the best interests of the child might require the admission of the further evidence and a new hearing to investigate all the available evidence. But if such cases would entitle the Full Court to order a new hearing, they should be regarded as truly exceptional. Ordinarily, even those cases are best left to be dealt with by an application, made pursuant to s 65E, to vary the order the subject of appeal. However, assuming such cases are an exception to the general rule, they are quite different from cases where there is merely a difference of opinion as to whether the child's best interests require him or her to be in the care of one parent rather than the other.
Of particular importance to many of the applications made by the father in this appeal, their Honours also held that (at 217):
148.… Whatever the limits [of the appeal court’s] role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
While the High Court held that, in parenting cases, further evidence may be admitted where circumstances have changed, that is subject to the very important caveat that this “cannot occur” where the evidence is significantly in dispute and, its evaluation by this court cannot as a result be undertaken. In those circumstances, applications to a trial court will “generally be the preferred mode of procedure …”. ([204] per McHugh, Gummow & Callinan JJ).
As has been observed, here the father has in fact instituted fresh proceedings seeking parenting orders based, in part, on the evidence sought to be adduced before this Court.
The First Application
The “additional documents” sought to be adduced by this application comprises an additional affidavit tendered by the father which contained favourable psychological assessments of the father (contradicting, it is said, evidence in the trial from a Ms GS), contravention applications filed by the father and two further affidavits.
This self-serving evidence is, overwhelmingly, irrelevant to the primary judge’s findings. It does not illuminate any asserted error. The contravention applications merely highlight the difficult relationship between the parties, an issue considered comprehensively by the trial judge. The trial judge placed very little weight on the psychological evidence; his Honour’s findings were based overwhelmingly on vivid displays by the father in the courtroom of the behaviour identified by his Honour.
The application is refused.
The Second Application
The “additional documents” the subject of this application purport to relate to the mother’s mental health. It consists entirely of matters occurring subsequent to the trial and falls squarely within the category of evidence referred to in the passages of CDJ (above). There is no basis demonstrated for the admission of this evidence.
At the hearing of this appeal, the father referred to five specified portions of the audio recording of the trial proceedings. They were said by the father to display the alleged bias of the primary judge. The father insisted that the court listen to the audio passages, rather than read the relevant portion of the transcript, because the audio was said to display the trial judge’s “badgering” of the father and his unpleasant “tone”.
Given the length of the five examples, the court required the father to pick one example of the five that he had chosen as particularly illustrative of his complaint. The father chose a passage from the hearing on 3 November 2011 starting at 40 seconds into the audio until 7 minutes and 30 seconds. (Transcript of Trial Proceedings, 3 November 2011, pp 2 – 6). The exchange deals, yet again, with the father’s desire to have more time to access the B/Ricardo files.
Nothing in either the transcript or the audio reveals any alleged “badgering” or any “tone” or words that are indicative of prejudgment or, indeed, any other untoward conduct by the trial Judge. Indeed, we would venture that a reading of the transcript, as a whole, reveals the trial Judge dealing with all issues raised by the father (and his behaviour in the courtroom) in, a dignified, patient and appropriate manner.
The application is refused.
The Third Application
This application relates to an affidavit and a transcript of Children’s Court proceedings, which purportedly “prove” that Ms F confessed to perjuring herself during the trial proceedings of this matter. Allegedly, the father and his current partner, Ms I, had lunch together during a break in Children’s Court proceedings involving the father and Ms F during which, it is alleged, Ms F confessed to perjuring herself. The father alleges that Ms F had confessed to falsifying her affidavit in trial proceedings before Watts J and that the falsification was procured by her employer.
By its nature this evidence is highly contentious. Despite its significant seriousness if true, it does not demonstrate or illuminate any asserted appealable error before this Court.
The trial judge concluded in any event that Ms F’s evidence was to be treated with caution and attached little weight to her affidavit. Moreover, all that his Honour took from Ms F’s evidence was that she was occasionally required to work on the farm. The challenge to this part of his Honour’s reasoning is of negligible practical effect.
The application is refused.
The Fourth Application
This application again seeks to adduce evidence of the audio recording of the trial. Our comments above pertain and to that extent the application is refused.
Sensibly, no objection was taken to the father relying upon his 28-page, summary of argument and we permitted him to do so. Its cogency or relevance is, of course, another matter.
The Fifth Application
This application, too, relates to evidence purportedly relating to the credibility of Ms F. We struggle in any event to see how it differs from the third application. Our earlier comments pertain.
The application is refused.
The Father’s Grounds of Appeal and Arguments
Many of the grounds of appeal relied upon by the father are not proper grounds of appeal at all. Their elucidation is also not assisted by the closely-typed 28 page summary of argument. It is dense, repetitive and extremely difficult to follow.
In order to maximise the assistance to the self-represented father, we attempted to have the father crystallise the central assertions of his challenges and we propose to deal with each assertion as a “ground” even if some might not meet that description, and to deal with them by reference to the issue to which they are purportedly related.
The Challenges to Best Interests Findings
1. The Honourable Justice Watts failed to take into account [section] 60B 1a, 2a, 2b section 60CA, section 60CC 2a, 3b, 3d, 3e.
There had been 23 months months of Court action and [the child] has been denied access to her father, grand parents, uncles, aunties and relatives during this time. The Honourable Justice Watts has failed to take this into account for the childs psycological upbringing. [The child] is entitled to have a childhood knowing her cousins and relatives.
Justice Watts was in error not to allow adequate access between [the child] and her family.
4. [Mr Collins’] applications have been in the court system for nearly twenty two months. They were filed as an urgent application. The mother having a history of mental problems which could put the childs well being as risk. Justice Watts failed to place checks in place while my daughter is in her care.
5. It is crucial in a child of this age and an important time in her growing years that she has constant contact with all her siblings and family. Justice Watts has failed to allow continued meaningful contact with [the child] and her immediate family.
8. Justice Watts was in error not to relocate the Mother back to Wollongong so that [the child] can have a 50/50 access with both parents.
The Mother moved to Perth to be with some fellow that she met on the internet sometime before the relationship commenced with the applicant. She was unable to relocate to Western Australia back then due to court orders made in hearings between [B]/[Ricardo] concerning her previous two children aged 6 and 12. It was only after giving up custodial time with these children after 7 years of court action, due to legal advice she decided to relocate. The Mother was well aware of the impending relocation order when she sold her [Sydney suburb 1] property. Although it took two years to get a hearing in the Family Law Court there is no reason this should bias the applicant or the outcome.
(Errors as in original)
These “grounds” can all be dealt with together. Each and all do not assert any appealable error. Rather, they each assert, in different forms, that his Honour did not make an order consistent with what the father asserts are the best interests of the children. That is, they each assert in effect that his Honour should have reached a different result. Without more, that is insufficient to attract appellate intervention.
We would in any event respectfully add that his Honour’s reasons reveal a careful and correct analysis of the relevant statutory principles and considerations, and of the evidence relevantly informing them in this case.
These “grounds” have no merit.
Denial of Natural Justice Generally
2. Justice Watts failed to take into account the denial of natural justice by not allowing photocopy access of [Ms Ricardos] previous court files in “[B] verses [Ricardo]”. [Ms Ricardo] extracted certain parts of these files in her affidavit and referred to them several times. The court refused photocopy access and refused to allow postal notes to be stuck on the relevant parts. Justice Watts only allowed postal notes to be stuck on the relevant parts in two boxes of files after the court started in the applicants lunch hour.
Justice Watts was in error to allow court proceedings until adequate photocopied access was given to the [B]/[Ricardo] files of the appropriate sections to be used in cross examination. Justice Watts was in error when he placed time limits on the cross examination of Mr [B] and [Ms Ricardo].
Mr [B] was cross examined on a time limit and so was [Ms Ricardo]. It clearly placed the applicant at a disadvantage not having photocopied access to be able to highlight the appropriate sections for cross examination. The respondent was given photocopied access to all my previous files.
(Errors as in original)
The principles of natural justice emerging from the common law have always been seen as having a “… flexible quality which, chameleon-like evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power”. (Kioa v West (1985) 159 CLR 550 at 612 per Brennan J).
One of the circumstances relevant to a consideration of whether the father has been afforded procedural fairness is the fact that, although he is self-represented, he is by no means unfamiliar with the workings of courts and court process. As his Honour observed:
121.It is germane to note that the father has over a significant period of time, been an enthusiastic and persuasive litigant. He has been involved in at least four hearings in the Family Court; has defended a number of criminal charges in the local court; is currently involved in hearings in the Children’s Court, and has conducted appeals in the Family Court, District Court and Supreme Court.
In parenting proceedings under the Act, the flexibility to which Brennan J referred has been given, as it were, statutory imprimatur by Division 12A of the Act. Complaints about process in parenting cases must be seen against the background of mandatory statutory duties superimposed upon the pre-existing statutory duty to proceed without undue formality mandated by s 97(3) of the Act. The duties now cast upon the court by Division 12A of the Act include, for example, the duty to “… actively direct, control and manage the conduct of the proceedings” (s 69ZN(4)) and to conduct proceedings “without undue delay” (s 69ZN(5)).
His Honour specifically addressed the father’s complaints about procedural fairness (Reasons [116] – [152]) and comprehensively, and with respect correctly, addressed those concerns. His Honour’s conduct of the proceedings over nine days (including periods when the trial was adjourned part heard) demonstrates plainly that his Honour was alive to the statutory duties just referred to while balancing properly and appropriately the need to provide fairness to the father, especially as a self-represented litigant. (See generally, Re F: Litigants in Person Guidelines (2001) FLC 93-072; Johnson v Johnson (1997) FLC 92-764).
Access to B/Ricardo files
His Honour observed at [127] of the reasons that the main focus of the father’s complaints about lack of procedural fairness in this case centred around his inability to photocopy material from the court file pertaining to parenting proceedings between the mother and her former partner, Mr B. His Honour observed that, “[w]hilst not centrally relevant to matters dealing with the child, the father wished to establish that the mother had made exaggerated claims about Mr [B’s] behaviour. The father claimed these were in similar terms to the exaggerated claims she now made against him”.
The complaint is dealt with extensively in paragraphs [127] – [140] of the trial judge’s reasons. Reference to both the transcript and his Honour’s reasons reveals that, despite the marginal relevance of much of the material sought by the father, he was afforded very significant consideration by the Court in seeking to make documents from that file available to him. As some examples, the trial Judge noted:
130.The relevant material is in two ring binders and is exhibit 49 in the proceedings. In an attempt to make it more convenient for the father, the court went to the trouble of isolating the documents said to be relied upon by the father in his document which is exhibit 10, and organising them into these two indexed binders. Since 11 April 2011 the [B/Ricardo] documents have been available in the exhibits section of the Family Court primarily in the Sydney Registry. An attempt was also made to assist the father by having the binders available, by arrangement, in the Wollongong registry for two periods of time.
…
133.The fundamental point to make about the father’s claim of lack of procedural fairness in relation to the [B/Ricardo] files is that these files were there for him to look at and to make notes from for very many months. It is symptomatic of the father’s sense of personal injustice that he refused reasonable opportunity to further inspect the material and make notes in relation to the material, due to his view that he was denied the photocopy access he wanted. On an overall basis, I am of the view any difficulties with photocopy access did not jeopardise the manner in which the father could have conducted his case, had he not have been so intently focused on his desire to obtain photocopies from the file.
…
142.The solicitor for the mother tendered a document where he wrote to the father and told him the documents were in Sydney, to where he could drive to view the files. The father was given notice that he could do that. His personality and his focus on getting photocopies meant that he was not prepared to accept that as an option. I do not accept his claims that he was unable to leave his farm.
Further, his Honour’s reasons with respect to these documents reveal factual findings adverse to the father not specifically challenged on this appeal. For example:
131.I have accepted the mother’s evidence and rejected the father’s denial that the father was actively involved in assisting the mother in the litigation against Mr [B] in 2008. In particular, I specifically find that the father played a directive role in preparing significant parts of the mother’s affidavit in the [B] matter (sworn December 2008). I find that the father already knew what was in that file because he actively participated in significantly assisting the mother between September 2007 and August 2010 in the preparation and running of that case.
132I am not confident that I can accept that everything the father says he sent to the Court was sent, or if sent, was received by the court. I have difficulty accepting the father did not receive the email sent to him on 8 July 2011. I have difficulty with the assertion by the father that on the Thursday before the recommencement of the trial (27 November 2011) he emailed my associate to enquire as to where the [B/Ricardo] files were (exhibit 31). As I indicated in the trial (and the father said he did not wish to receive evidence from my associate) no such email was received in the court system. The court has no record that this email was ever received.
Despite the father not receiving a response to this email from the associate, no reference was made to this email in the father’s emails to the associate of 30 or 31 October 2011, which were received. No argument advanced in writing or orally by the father is persuasive of any lack of procedural fairness relating to these documents or, indeed, of any other error made by his Honour in respect of them.
The Late Filling of Affidavits and Asserted Consequent Disadvantage
b. [Ms Ricardo] was given not one but two court orders for the filing and serving of affidavits. Both orders were not adhered to. Justice Watts accepted that although they were served by way of email on the Friday before court and were not received until the Sunday 18 hours before court on the Monday, it was o.k. to continue with the hearing. He failed to take into account that the applicant was self- represented and this now gave the applicant no chance of seeking legal advice on this 538 paragraph affidavit. It also gave the applicant very little chance of preparing for a nine day hearing.
It placed the self represented applicant under extreme duress and stress and gave a distinct unfair advantage to the respondent.
It was fair and reasonable for the applicant to expect this late service of an affidavit clearly not complying with court orders to be dismissed.
It was reasonable to expect that the two previous 500 plus paragraph affidavits were the ones to be relied on. The applicant was not ever informed that this was not to be the case.
It was then fair to expect the applicant to focus on these affidavits on preparation.
Justice Watts was in error to allow the late service of this affidavit. In effect the applicant now had to read and prepare for court while court was proceeding.
This caused the applicant to fore go much needed sleep each night to read and prepare.
This placed the applicant under extreme duress and pressure eventually causing the applicant to break down on the 5th day of proceedings due to no sleep in a 48 hour period.
A self represented applicant can not possibly function under these conditions.
The applicant does have little memory of this 5 day period. When court was part heard and the next date was given 5 months away, the applicant asked the courts to provide for free the previous 5 days hearings in written transcripts due to the extreme pressure that had been placed on the applicant due to this late service and acceptance of [Ms Ricardo] affidavit.
(Errors as in original)
The father submits that he was not permitted to cross-examine the mother to his satisfaction. The father cites the late service of the mother’s affidavit as hampering his ability to do so together with the imposition and subsequent deviation from the trial plan imposed by the trial judge. In correlation to this, the father claims that the ICL was provided with a comparative advantage in terms of the length of the ICL’s submissions.
The ‘ground’ has no foundation. The father’s argument fails to mention that, as the trial judge correctly observed, any such concerns emanating from the late filing of the affidavit were met:
147.1The fact that the mother was not cross-examined by the father during the first five days of the hearing and that there was a three month adjournment between the first five days of the hearing and the final four days.
147.2I made an order on 1 July 2011 allowing the father to file an affidavit in reply to any material in the mother’s affidavit. The father chose not to do that. His reason was that he didn’t have photocopy access to the [B/Ricardo] files. I do not accept that as a valid reason for not taking the opportunity to respond to the mother’s material. The father could have prepared an affidavit using the access that he had to the [B/Ricardo] file in the exhibits section of the two registries from time to time. The father did not need photocopies from this file to complete the affidavit. The father could and ultimately did, tender all of the material he identified from that file.
In addition, the transcript of proceedings and the father’s conduct of his case more generally bear out his Honour’s findings that:
154.Had the father not voluntarily absented himself for over half of the day of the hearing on the 8th day, he may have in fact had a longer opportunity to ask the mother questions. In any event, I made it clear on a number of occasions that the father should organise the questions that he wished to ask of the mother in order of priority. I reminded the father on a number of occasions that it would be good to focus on questions that directly related to what might be in [the child’s] best interests, but that was not the father’s focus for most of the time he asked questions of the mother. I reminded the father on a number of occasions when he was asking the mother questions, how he was going for time.
Even in cases where a departure from natural justice is established, the court is obliged to consider “[w]ould further information possibly have made any difference?” (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145). In this case, much of the cross-examination pertained to the mother’s conduct in relation to the earlier case with her former husband, Mr B. The cross-examination was, at best, directed solely to the mother’s credit and much of it was marginally relevant. In any event, his Honour found, in respect of the mother’s evidence:
48.I also have some difficulty accepting some of the things the mother said. It is probable that she was exaggerating some of the claims that she had made against the father …
49.Some of what I have said about the mother’s evidence, particularly the inappropriate sexual abuse allegation, raises a serious doubt about the ability to rely on the mother’s evidence in an uncritical way.
The alleged limits on cross-examination by the father were, in addition, entirely consistent with the statutory duties imposed upon his Honour by Division 12A of the Act.
Time Limit on Cross-Examination
Justice Watts was in error to only give five hours [300min] to cross examine a 538 paragraph affidavit. This would mean if a only one question was to be asked on each paragraph that would one question to be asked every 55 secs leaving no time for a reply. Not to mention with no photocopy access questions meant stumbling through two boxes of previous files with little markings.
Justice Watts was in error to only give five hours to cross examine two boxes of previous court files with only selected postal note markings on previous court files for reference.
(Errors as in original)
No appealable error is established with respect to his Honour’s trial plan and the relevant limits on cross-examination and the other components of it.
Setting a trial plan in the manner in which his Honour did was wholly consistent with the statutory duties imposed upon the court and wholly consistent with the obligation towards other litigants and witnesses referred to in Re F (above), namely, the duty to “… ensure that trials are not unduly protracted and that cross-examinations are not prolix and irrelevant.” (at 88-266, [135]).
Moreover, as is again revealed by reference to his Honour’s reasons and the transcript, his Honour was at pains to direct the father toward lines of cross-examination centrally relevant to the issues pertaining to the child’s best interests, but the father persistently refrained from heeding his Honour’s comments and, conversely, continued to direct his attention to issues which were marginal, at best, to the proper inquiry as to the child’s best interests.
Accepting Affidavits from Witnesses Out of Time
The affidavits of Mr [W], Ms [D] were filed in time but served well out of time.
This was only done to hinder and limit the time the applicant had to prepare for court.
Justice Watts was in error to accept the late service of these affidavits.
The affidavit of [Ms J Collins] was served midway through the part heard matter.
Justice Watts was in error to accept this later service of the affidavit.
Ms [Ricardo] had two years to file and serve her affidavits.
The comments just made apply also to the additional complaint that his Honour erred in accepting affidavits from the witnesses named within the grounds. The allegation that his Honour did so “only … to hinder and [limit] the time the applicant had to prepare for court” is scandalous and has no foundation whatsoever.
No error is demonstrated in the exercise of his Honour’s discretion in accepting the affidavits.
Alleged Error in Failing to Provide a Transcript Free of Charge
Justice Watts was in error not to provide written transcripts provided for free by the court knowing the applicants financial status and the unfair pressure he had placed on the applicant.
No appealable error is established by reference, without more, to the failure to provide free of charge a transcript of proceedings to a self-represented litigant. (See for example, Forbes & Bream [2008] FamCAFC 189).
That issue aside, his Honour specifically found, with respect, entirely correctly as we see it, that:
145.Another example of the court attempting to assist the father was the father’s extraordinary pretence that he had little memory of what had happened in the first five days of the hearing. I do not accept the truthfulness of that assertion. A transcript will reveal that the father for the great bulk of the hearing presented himself in a forceful and articulate manner, evidencing the fact that the father had a high level of intelligence. The father has prided himself on his physical fitness, particularly in endurance sports.
146.In order to allay the assertion by the father that he had been denied procedural fairness on account of him being exhausted throughout the first five days of the hearing, and that he had little memory of it, I ordered that a CD of the audio of the first five days of the hearing be prepared and placed in the exhibits section (including for a period of time, in the Wollongong registry to allow the father easier access to it). Upon the resumption of the hearing, the father conceded in his evidence that he had simply ignored the opportunity of listening to any part of the CD and made reference to his lack of knowledge of the evidence in the first five days of the hearing on more than one occasion during the 6th to 9th days of the hearing. Interestingly however, the father at the end of the hearing made detailed submissions concerning evidence given during the first five days of the hearing by various witnesses that he called.
Not only is there no merit to the challenge, but his Honour’s reasons and the transcript reveal his Honour doing more than could reasonably have been expected of the court to assist the self-represented father.
The Airport Watch List Order
a. Justice Watts was in error with the evidence before him not to keep [the child] on the Airport watch list permanently and never allowing her out of the country with the mother.
The error alleged in this complaint is not at all apparent.
His Honour ordered:
21.The mother be restrained from taking or sending or attempting to take or send [the child] born … 2008 from Australia unless, at least six weeks before the date of travel the mother provides to the father in writing:
21.1written notice of the mother’s intention to take [the child] from Australia;
21.2a copy of an itinerary of travel and contact details while the mother is overseas with [the child];
21.3a copy of a return airline ticket for [the child];
21.4a solicitor’s letter certifying that the mother has paid into that solicitor’s trust account an amount of $25,000 which is to be held by that solicitor whilst the mother is overseas with [the child];
and provided that the period [the child] is outside Australia does not exceed six weeks.
22.The Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
23.The Registry Manager shall immediately notify the Australian Federal Police Family Law Team of these orders and shall as soon as possible provide a copy of these orders to the Australian Federal Police.
24.The Court requests that the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
25.The mother be permitted to take [the child] outside Australia upon her providing to the Australian Federal Police a statutory declaration which includes evidence of the following things:
25.1evidence that written notice to the father at least six weeks before the date of travel of the mother’s intention to take [the child] from Australia;
25.2evidence that the father has been provided with a copy of an itinerary of travel and contact details whilst the mother is overseas with [the child];
25.3evidence of a return airline ticket for [the child];
25.4evidence by way of a solicitor’s letter certifying that the mother has paid into that solicitor’s trust account an amount of $25,000 which is to be held by that solicitor whilst the mother is overseas with [the child]; and
25.5The period of time that [the child] is absent from Australia not exceed a period of six weeks on any one occasion.
26.The father has liberty to apply for the release of all or any part of the amount of $25,000 referred to in order 21.4 and order 25.4 in circumstances where the father asserts that those funds are needed by him to pay the costs associated with him attempting to recover [the child] from a place outside Australia.
We take the father’s challenge to be that his Honour erred in not making an order that would see the child never leaving Australia. Sustaining any such challenge involves pointing to an error in the exercise of his Honour’s discretion. Neither any ground of appeal nor the father’s argument does so; his Honour’s orders provide an appropriate balance between orders which permitted of travel that can be seen to be in the child’s best interests and ensuring the child’s return to Australia.
No error is established by this challenge.
The Evidence Act “Guidelines”
c. [Ms Ricardo] has used selected findings from reports from a Court Clinitian (sic) [Ms BN], from [B/Ricardo] hearings as evidence and annexure attached to her affidavit. It is injustice to allow this evidence without being challenged. It is not possible to challenge this evidence in the time frame allowed. Justice Watts was in error to accept a 538 paragraph affidavit as evidence served out of time.
The applicant had made an earlier application to the court to have this affidavit placed in a format to meet the “Evidence Act”. Justice Watts was in error to accept an affidavit as evidence not meeting the guidelines of the “Evidence Act”
As can be seen, this “ground” is not particularised by reference to the specific provisions or “guidelines” of the “Evidence Act” or otherwise. It appears from the father’s summary of argument that he contends that his Honour ought to have excluded hearsay evidence.
No reference is made in the ground or summary of argument to s 69ZT of the Act. His Honour explained carefully to the father at the outset of the hearing that hearsay evidence is admissible by reference to that section in parenting proceedings.
In the absence of further or other particularisation or argument by the father we can see no appealable error here.
For the sake of completeness, we should mention that although hearsay evidence is admissible, the weight to be attached to it is a matter for the trial judge. (s 69ZT(2) of the Act). Nothing within the ground or anything contained within the written or oral arguments of the father suggests any error in the attribution of weight.
This challenge has no merit.
Relative Length of Submissions
10. Justice Watts was in error in allowing the child counsel to adequately sum up her case but did not allow the applicant adequate time for his submissions. Justice Watts rudely cut the applicant short on his submissions.
The father’s assertion in respect of the asserted advantage gained by the ICL by reference to the comparative length of the submissions of each is, with respect, difficult to fathom.
Without more, no conclusion can be drawn as to advantage or disadvantage (or any failure of natural justice) by reference to the length of submissions. The transcript bears out no such unfairness and his Honour’s reasons bear witness to a close consideration of the father’s arguments.
Bias by the trial judge
d. It was clear from the onset that the Justice was bias (sic). On two separate occasions, the Justice was asked to stand aside for being biased. It is clear from the transcripts of the bias that the applicant received.
The bias reached to such a degree that the applicant packed up and left in the middle of the hearings with the threat to be jailed for contempt.
To the extent that actual bias is asserted by the father, it is not particularised and nor is any foundation whatsoever offered for any such finding.
To the extent that apprehended bias is asserted, the test is well established. For example, the High Court said in a well-known passage in Johnson v Johnson (2000) 201 CLR 488 at 493 per Gleeson CJ; Gaudron, McHugh, Gummow and Hayne JJ)
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(Citations and footnotes omitted)
As has been seen, the father’s assertion of apprehended bias is aligned with the father’s Application in an Appeal which sought to have us listen to the audio recording of the trial. Our earlier comments pertain.
An inquiry into the child’s best interests may require a Judge to take upon a more inquisitorial approach in the pursuit of objective findings rather than those put forward by conflicted parents (Bartlett and Bartlett (1994) FLC 92-455). Secondly, as we have sought to point out earlier in these reasons, s 69ZN of the Act mandates duties that may require Judges in parenting proceedings to intervene actively in the proceedings. Equally, intervention can be required to preserve fairness to other litigants. (See for example Re F: (above) at 88-266, [224]).
The father’s bias argument also appears to suggest that apprehended bias is evidenced within his Honour’s reasons. The father drew the court’s attention to his Honour’s findings regarding the father’s personality and credibility. A particular example includes his Honour’s views that, “[d]ifficulties with the father’s credibility arose from his personality and how he generally is unable to concede that anything in his character or behaviour has been responsible for particular outcomes.” (at [47]).
To the extent that such a contention is made, we think a sufficient answer is provided by the entirely apposite comments of von Doussa J in SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 668 at [38] (cited in Stephens v Stephens (2010) 43 Fam LR 106 per Strickland J (at [79]) :
In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision-making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter gives rise to no inference as to the state of mind of the decision-maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more it is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion.
(emphasis added)
The allegation of bias has no merit.
The Retail Store Subpoena
3. [Ms Ricardo] subpeoned [the retail store] with an accompaning letter for financial records. The application was only ever for custody. This was a misuse of Subpeona and an injustice. The subpoena and accompaning letter caused the dismissal of my employment. [Mr Collins] intended to subpeona [the retail store] for these two documents for use of supporting evidence with a view to making a claim to Ms [Ricardo] for her misdemeaners and misuse of court documents. The Honourable Justice Watts has denied the filed of this subpeona. Again this is a denial of justice. The Father quite clearly was after a costs order against the Mother for the misuse of the court system.
(Errors as in original)
This is not a proper ground of appeal. We can, in any event, see no reference to it in his Honour’s reasons and, respectfully, we have considerable difficulty in understanding the challenge intended by it.
The Independent Children’s Lawyer
The applicant had twice made application for the child representative to be dismissed as she wasn’t needed. Justice Watts was in error not to do this.
The child representative then engaged a Barrister to enhance her position.
The Father was self represented and the mother represented by a lawyer. It was quite clear there was no need for a child representative let alone counsel for the child. The child was 3 and was not of a (sic) age to confer with her lawyer or counsel.
To the extent that this “ground” challenges the appointment of the ICL, as the written summary of argument of counsel for the ICL points out the record reveals that on 27 June 2011 his Honour refused the father’s application to discharge the ICL. The order was not appealed. The father’s argument then appeared to turn on the submission that the “… child’s rep was appointed a fair while ago now”. The father went on to submit that “… right from day one I have put in that the child rep be dismissed.” We accept the submission by the ICL that this complaint is at odds with an affidavit filed by the father on 14 April 2010 which, at [8] said: “I now ask the Child rep (sic) be re appointed”.
If the contention be that appealable error is somehow demonstrated in failing to discharge the ICL, it has no foundation.
We apprehend, however, that these challenges are not stand-alone challenges but are included as part of the challenge to the order that the parties each pay half of the ICL’s costs which is embraced by the “ground” to which we now turn.
The Order that the Parties Each Pay Half of the ICL’s Costs
6. The costs order against the applicant was made in error. The applicant was self represented and on sickness benefits due to an injury and should never have had fear of or been given a $10,000.00 costs order against the applicant just to try and continue a relationship with is daughter.
All children have a right to a meaningful relationship with both parents.
A parent should be able to go through the legal system self represented with out fear of costs to obtain that right.
…
There was a current financial statement in the [D/Collins] files which were suppose to be in the court but unfortunately the files were sent to Wollongong by mistake midway through the proceedings had started. This financial statement was unable to be produced because of this error of the courts.
Justice Watts was in error to determine costs without this statement to help with the financial status of the applicant when determining costs of the child representative.
…
Justice Watts failed to deal with the reimbersment of the costs of the Farther travelling to [city 1] in WA to see his daughter.
(Errors as in original)
His Honour ordered:
27.The parties shall each within six months pay to Legal Aid NSW the sum of $10,870, being one half of the cost of the independent representation for [the child].
The challenge is directed to the exercise of his Honour’s discretion pursuant to s 117(2) of the Act. No ground or argument identifies any error in the exercise of that discretion. Re-framing the argument as favourably as possible to the father, it might be said that the order fails to take account of relevant considerations, namely the father’s then financial circumstances, including by reference to his Financial Statement and/or his assertion that the ICL should have been earlier discharged.
As has just been seen, the latter contention fails for being based on an incorrect premise.
As to the former, his Honour dealt comprehensively with the parties’ financial circumstances earlier in the reasons when looking at the financial resources available to facilitate orders for time with the child (at [253] – [261]). His Honour plainly had reference to those findings, and to the very modest amount of costs sought by the ICL when considering the making of a costs order (at [355]).
There is no basis for the assertion that his Honour’s discretion in respect of costs miscarried by reason of a failure to take account of the father’s travel expenses.
If the issue is in fact directed to the exercise of discretion in respect of the ultimate orders to time there is no merit to it either; his Honour plainly took into account all relevant considerations and gave weight to those matters centrally relevant to the child’s best interests.
No error is demonstrated in the exercise of his Honour’s discretion.
Additional Assertions of Error
It will be clear from what we have said that we consider that no appealable error is established by reference to the “grounds” disclosed in the Notice of Appeal.
The lengthy, discursive summary of argument filed by the father raises other issues which are not embraced by the Notice of Appeal. Many pertain to allegations in respect of events occurring subsequent to the trial. Our earlier comments in respect of the father’s Applications in an Appeal apply. None of these additional complaints have merit. However, we will, for the sake of completeness, refer very briefly to those complaints contained within the father’s summary of argument.
Weight and Credibility Findings
The father’s central argument appears to relate to his Honour’s findings as to his own credibility and the weight attached to his evidence. For example, the father stated that he felt “insulted” by the trial judge’s findings (Summary of Argument, p 24, para 87).
At [28] of the reasons his Honour refers to a transcript of magistrate court proceedings, before a Magistrate in September 2010 (see s 69ZX(3)). At [29], his Honour said in reference to that transcript that the father had (in those proceedings) “… chosen deliberately to lie on his oath … in order to maintain a forensic advantage in that litigation.” The father contends that the trial judge’s findings are made unfairly in reliance on a portion of the proceedings which, he alleges, is taken out of context. However, the trial judge had made it clear that “[t]he findings of credit by another judicial officer have only limited weight” and that he was largely persuaded by his own first hand observations of the father at trial before him (at [28]).
The findings made by the trial Judge in respect of the father plainly had a solid evidentiary foundation. As but two examples of many, the evidence of the father’s now adult children suggests that his preoccupation with order and orderliness translated into unsafe activities and violent episodes. Evidence from departmental files before his Honour (referred to at [207]) record:
·the father forced the children to run long distances, V obtaining a heart rate of 228, above a safe limit of 209;
·L and V were physically abused when they did not achieve the father’s standards when training;
·the father imposed excessive household responsibilities on the children;
·the father’s training regime for the children was excessive and impacting upon schooling, including multiple hours in a day where the children were required to run and swim; and
·V was forced to ride her bike long distances along main roads.
Evidence accepted by his Honour reveals how his children were physically hurt or intimidated when they failed to follow the father’s instructions or expectations in sporting activities. In this context, his Honour found:
85.On 14 October 2001 the father hit [V] and cut off her hair. The next day the father was charged with assault and child abuse following his excess chastisement of [V].
…
67.[Ms J Collins] and her father give very conflicting versions of a physical assault by the father upon [Ms J Collins] which was a forceful slap to the head. [Ms J Collins’] affidavit evidence is that while on a camping trip the father wanted her to go scuba diving but she refused because she was having ear problems. The father allegedly yelled at her and told her she would go scuba diving whether she liked it or not. She walked back to her tent. The father came to collect her to go diving and again she refused and the father “slapped [her] across the head pretty hard”. [Ms J Collins’] friend [E] fetched the Ranger who took the girls back to the base for [V] and [Ms D] to pick them up. The father denies any such thing remotely like this happened and claimed that [Ms J Collins] was acting out because she didn’t like Ms [Ricardo] or the way the father was interacting with her children, and had refused to walk up the headland to be picked up by the boat. He denies physically hitting her but accepts he was angry with her. I found [Ms J Collins’] oral evidence about that compelling. I conclude that the father was prepared to be untruthful when he gave evidence about this incident.
…
230.… I note that the father, when cross-examining [Ms J Collins], was trying to have her remember fun incidents on the farm. The father led her to recall that she travelled on the back of the father’s ute for fun while he was driving, had fallen out of the ute and been knocked unconscious, and had woken up in hospital. She continued travel on the back of the father’s ute after this incident. I find the father trivialised the danger involved in this incident.
Each and all of the findings made by his Honour were open to him. No error is demonstrated in respect of any such findings. His Honour was, with respect, correct to attach the weight which his Honour did to both his observations of the father’s words and the conduct before him, and to the other evidence founding his Honour’s conclusions as to the father’s personality, parental capacity and credibility.
The father also makes several complaints about the trial judge’s treatment of the evidence of other witnesses. None amount to anything more than an assertion that his Honour ought to have arrived at a different conclusion as to weight or credibility. None warrant appellate intervention.
The specific challenge to Ms F’s evidence is, as we have said above, integrally connected with evidence emerging subsequent to the trial. In any event, as we have earlier pointed out – and as his Honour correctly found to be the case - Ms F’s evidence counted little in determining what orders were in the best interests of the child. Indeed, we consider that the father’s continued reference to this evidence exemplifies the very point his Honour made about the focus of the father being not on issues as to the child’s best interests but, rather, on himself and who is right and who is wrong.
The trial judge accepted the evidence of two of the father’s lodgers, a Ms H and a Mr A. Both lodgers were university students, who stayed with the father at his farm property for some months. Both witnesses provided what might be described as evidence of the father’s general character. The trial judge accepted their recollections as “honest recollections” (at [63] – [64]). The assertion is that greater weight should have been given to their evidence, including to the evidence of Ms H which contradicted the mother’s evidence that the father had “dunked” the child into a pool. Without more, this is insufficient to attract intervention by this Court. Again, the father’s assertions exemplify the very point made by his Honour to which we have just referred.
The Assertions that Evidence Was “Illegally Obtained”
The father makes two complaints in relation to the trial judge’s acceptance of so-called “illegally obtained evidence”. The first is that the transcripts from the proceedings before a Magistrate were obtained and distributed illegally. Reference is made to s 121 of the Act. The argument is misconceived if only because s 121 applies exclusively to “… proceedings, under this Act…” and not proceedings conducted elsewhere. Reference has earlier been made to s 69ZX(3) of the Act. It provides that the court may admit into evidence in child related matters the transcript of any other proceedings not only before the court hearing the matter, but also any other court (or tribunal).
Secondly, the father complains that the evidence of a counsellor at Relationships Australia, Ms GS was “illegally” obtained. It is contended that the mother photocopied a court file so as to obtain the report in contravention of an order or that she “… obtained them illegally from my ex-wife Ms [D]”. It seems that the father alleges that the report was initially attached to an affidavit by his former wife “done in November 2010”.
Again, we consider that this assertion is misconceived. However, whatever might be said about that, it is crucial to observe that his Honour found:
158.… Ms [GS] of course was not called for cross-examination and I do not put any great weight on her analysis of the husband’s personality except to say that I had the opportunity of observing the father over a nine day period. Many of the traits to which Ms [GS] refers were clearly evident to me. The father also agreed, in cross-examination, that he had some of them.
The evidence of Ms GS was not material to any finding central to the child’s best interests.
The Difficulty and Expense of Time Orders
Section 60CC(3)(e) of the Act requires the Court to consider if relevant “the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.” The father complains that the trial judge failed to consider the mother’s practical ability to relocate with the child from her then residence, in Western Australia, to the father’s farm in New South Wales, so as to enable frequent communication and contact between the child and the father. Essentially, the father contends that the mother’s favourable economic position, gauged by his assessment of the mother’s personal finances, would enable her to relocate with the child with relative ease.
It was no part of the mother’s proposal that she live with the child other than with Mr W in Western Australia. Having determined that the child’s best interests lay in living with her mother, his Honour’s inquiry turned, as it should have, to the practical means by which any orders for time could be implemented:
296.A major issue here is whether the mother or the father has the capacity to fund [the child’s] time with the father – whether that involve flights, relocation or contact centres. I have dealt with the financial capacity of the parties above and I have found that each party has the capacity to meet the expenses associated with any orders that would be made or [the child] to spend time with her father.
Earlier, under the heading “Financial position of the parties” the trial judge dealt comprehensively (at [239] – [261]) with the financial resources of the parties that might be utilised in that respect. Contrary to the father’s submission, the trial judge considered the financial capability of both parties and ultimately found that both parties had a financial capability to carry out the orders, and nothing of which the father submits suggests any appealable error in that finding.
The Assertion the Time Orders are “Unworkable”
The father argues that the orders fashioned by the trial judge are “outside the ‘Guideline for Family Law Courts Children’s Contact Services’ booklet” and that error is established accordingly. Plainly, that fact, if it be a fact, is not of itself demonstrative of error.
The issue pertaining to contact centre policies and their impact, if any, was not raised before the trial judge, and nor was it the subject of evidence. Instead, the parties discussed the geographical distance between the contact centres.
If there be evidence emerging from events subsequent to the trial, the remedy, if there be one, lies in proceedings at first instance.
Conclusion
There is no merit in any of the “grounds of appeal”.
No error is otherwise established by reference to any argument raised by the father in his summary of argument
The appeal must be dismissed.
Costs of the Current Appeal
As is customary, we sought submissions from the parties at the conclusion of the hearing in advance of our judgment so as to avoid the necessity for further appearances and/or written submissions.
On this appeal, the father has been “wholly unsuccessful”. The appeal enjoyed little prospects of success. Reference is made to his Honour’s findings in respect of the parties’ financial circumstances. Success in the appeal, would in any event, have seen a remitter of the matter. Fresh proceedings in respect of the best interests of the child have already been instituted but the appeal was not abandoned or withdrawn.
We consider that the circumstances justify an order for costs and would order that the father pay the costs of the mother and the ICL of and incidental to the appeal (s 117(2) of the Act).
Submissions were made by the ICL that her itemised costs amount to $4,136 inclusive of GST. We consider that sum is more than reasonable in the circumstances of this appeal. We consider there is considerable scope for protracted debate with the father about the quantum of any costs. In all of the circumstances, we consider it appropriate to fix the ICL’s cost at $4,000 inclusive of GST. The mother’s costs should be in such sum as is agreed to, or failing agreement, as assessed.
I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 May 2015.
Associate:
Date: 7 May 2015
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