Davila & Huffman
[2024] FedCFamC1A 50
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Davila & Huffman [2024] FedCFamC1A 50
Appeal from: Davila & Huffman [2023] FedCFamC1F 986 Appeal number: NAA 322 of 2023 File number: BRC 15010 of 2020 Judgment of: GILL, HOWARD & STRUM JJ Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge ordered that the children live primarily with the mother and spend alternate weekends with the father – Where the primary judge granted sole parental responsibility to the mother – Where the father appealed against the final parenting orders – Where the primary judge provided cogent and sufficient reasons for rejecting the father’s case for equal time orders – Where the father has failed to identify any error on the part of the primary judge – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Browne v Dunn (1893) 6 R. 67; [1893] 1 WLUK 44
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
DB v British Columbia (Director of Child, Family and Community Service) [2002] B.C.J. No. 253
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
LC & TC (1998) FLC 92-803; [1998] FamCA 47
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Hood & Weaver [2022] FedCFamC1A 123
Strickland v Washington (1984) 466 US 668
Number of paragraphs: 31 Date of hearing: 19 March 2024 Place: Brisbane The Appellant: Litigant in person Counsel for the respondent: Ms Oakley Solicitor for the respondent: ABA Lawyers Counsel for the Independent Children’s Lawyer: Ms Quinn Solicitor for the Independent Children’s Lawyer: Parker Family Law ORDERS
NAA 322 of 2023
BRC 15010 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DAVILA
Appellant
AND: MS HUFFMAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
GILL, HOWARD & STRUM J
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davila & Huffman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL, HOWARD & STRUM JJ:
By an Amended Notice of Appeal filed on 18 December 2023 (“the Amended Notice of Appeal”) Mr Davila (“the father”) appeals against final parenting orders made under Part VII of the Family Law Act 1975 (Cth). The orders were made on 21 November 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1). The respondent to the appeal is Ms Huffman (“the mother”).
The final parenting orders provided that the children of the parties, X (born 2012) and Y (born 2014) live with the mother and spend time with the father each alternate weekend from after school Friday until 5.00 pm Saturday. The orders also provided that the children would spend time with the father from after school until 6.30 pm each alternate Thursday. Other orders were also made by the primary judge including orders for electronic communication between the children and the father.
The primary judge ordered that the mother have sole parental responsibility for the children.
At first instance, the father had sought an order for equal shared parental responsibility and an order that the children live in a week about shared care arrangement between the parents.
The mother and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
THE GROUNDS OF APPEAL
The father’s grounds of appeal are contained in the Amended Notice of Appeal. There are four grounds of appeal and they are numbered 6 to 9 in the Amended Notice of Appeal. Those grounds are as follows:
6.Counsel for the Appellant failed to properly put to either the Respondent or to [Ms J], the Family Report Writer, the case of the Appellant as to why the children should live in a week about arrangement with each of the parties and his failure to do so caused the learned Judge’s exercise of discretion to miscarry.
7.The learned Judge failed to consider, at all or in the alternative failed to give sufficient weight to the allegations and evidence of the Appellant contained in his Affidavit filed 10 October 2023.
8.The learned Judge failed to give adequate Reasons as to why the children’s time with the Appellant should not increase.
9.The learned Judge failed to consider the Appellant’s Application that the children spend equal time in each parties’ care.
The primary judge’s decision involved an exercise of discretion. There are well established principles which must be followed by appellate courts when there is an appeal against a discretionary decision. In Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627 Kitto J stated that:
… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
Kitto J’s decision has been reaffirmed many times since – including in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.[1]
FIRST GROUND OF APPEAL[2]
[1] At [14].
[2] In the Amended Notice of Appeal filed 18 December 2023. The first ground of appeal is number 6.
In the first ground of appeal the father complains that his counsel at the trial failed to “properly put” his case for equal time to the mother and also failed to properly put the father’s case for equal time to the Family Report writer, Ms J. It is said further by the father (in this first ground of appeal) that the failure by his counsel to “properly put” his case caused the primary judge’s exercise of discretion to miscarry.
The conduct of counsel has been the subject of a good deal of judicial consideration. In OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281 (“OP v TP”) the Full Court[3] decided that whenever an issue relating to the conduct of counsel at trial arises on appeal the correct approach to be adopted involves a consideration as to whether or not two particular issues have been established. At [128] the Court stated:
… One is as to whether incompetence on the part of counsel has been established, and we would adopt the view taken by O’Connor J in Strickland[4] as the appropriate one in applying this test. The other is the issue of prejudice and we think that the appropriate test to be applied to the issue of prejudice is that adopted in DB’s case,[5] that is, but for the incompetence of counsel, is it reasonably probable that the result of the trial would have been different?
(Footnotes inserted)
[3] Nicholson CJ, Buckley and Kay JJ. “The Full Court” means the Full Court of the Family Court of Australia. This Court, the Federal Circuit and Family Court of Australia (Division 1), was previously known as the Family Court of Australia.
[4] Strickland v Washington (1984) 466 US 668 (“Strickland”).
[5] DB v British Columbia (Director of Child, Family and Community Service) [2002] B.C.J. No. 253.
The alleged failure by the father’s counsel to “properly put” the father’s case for equal time to both the mother and to the Family Report writer does not establish incompetence on the part of the father’s counsel. Indeed, counsel for the father was not required to “put” the father’s case for equal time to either the mother or to the Family Report writer. This ground of appeal appears to be a reference to the rule in Browne v Dunn (1893) 6 R 67 (“Browne v Dunn”). In LC & TC (1998) (1998) FLC 92-803 at [38] the Full Court stated:
In any event, it must be said that the rule in Browne v Dunn does not apply where the witness is on notice that the witness’s version of events is in contest. That notice may come from the pleadings or the other side’s evidence or the other side's opening; it may even come from the general manner in which the case is conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one…
The mother and the Family Report writer were well aware that the father sought an equal time order. Both the mother and the Family Report writer were on notice as to the precise nature of the father’s case. The father’s Amended Initiating Application filed on 10 October 2023[6] made it clear that the father sought orders that the children would live in a week about shared care arrangement between the parents. The father’s case for equal time was plainly identified by him in his interview with the Family Report writer in March 2023. This is apparent from paragraphs 26, 125 and 126 of the Family Report of Ms J.[7]
[6] Filed with the leave of the primary judge.
[7] See Appeal Book at pages 539 and 557.
In addition, the father’s counsel did cross-examine the mother at the trial in relation to certain aspects relevant to the question of equal time – including the proximity in which the parties lived to each other and to the schools attended by the children.[8]
[8] Note Transcript 24 October 2023, p.110.
The father’s argument does not identify incompetence on the part of his trial counsel.
In any event the second limb of the test enunciated by the Full Court in OP v TP[9] poses another problem for the father. If the father’s counsel at the trial had “put” the father’s case for equal time to the mother and to the Family Report writer, the question that we need to consider is whether it is reasonably probable that the result of the trial would have been different? In OP v TP the Full Court cited with approval O’Connor J’s observations in Strickland that “a reasonable probability is a probability sufficient to undermine confidence in the outcome”.[10] The primary judge made clear and strong findings in relation to the personality vulnerabilities of the father and the primary judge also attached significant weight to the expressed wishes of the children as to their living arrangements. It cannot be said that there is a reasonable probability that the result of the trial would have been different if the father’s counsel had explicitly “put” to the mother and to the Family Report writer the father’s case for equal time. In view of the findings made by the primary judge to which we have referred it cannot be said that the failure to “put” the father’s case for equal time has undermined confidence in the outcome of the trial.
[9] At [128].
[10] See OP v TP at [107] and [128] and Strickland at [19].
There is no merit in the first ground of appeal.
THE SECOND GROUND OF APPEAL[11]
[11] Referred to in the Amended Notice of Appeal as ground 7.
The complaint here is that –
7.The learned Judge failed to consider, at all or in the alternative failed to give sufficient weight to allegations and evidence of the Appellant contained in his Affidavit filed 10 October 2023.
The father has not identified those parts of his affidavit (filed 10 October 2023) that should have been considered and were not considered. In neither his Amended Notice of Appeal nor (such as it is) his Summary of Argument has the father particularised those parts of his affidavit that the primary judge failed to consider. In addition, the father has failed to identify those parts of his affidavit that he is referring to when he complains that the primary judge failed to give sufficient weight to his evidence.
The father filed a Summary of Argument on 29 January 2024. The Summary of Argument is incomprehensible. It does not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The rule is drafted in mandatory terms. The father’s Summary of Argument does not set out each ground of appeal and nor does it provide a statement of the arguments relied upon in respect of each ground. It is not the role of the Appeal Court to trawl through the evidence looking for instances of error. As the Full Court of the Federal Court of Australia stated in Bahonko & Sterjov (2008) 166 FCR 415 (“Bahonko”) at [3]:
… [there is] … an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
Before interfering with the primary judge’s decision this Court must be satisfied that some error has been made in the exercise of her Honour’s discretion. One of the well known factors from House v The King (1936) 55 CLR 499 would have to be identified.
Questions of weight and the advantages of a trial judge in a parenting case were encapsulated by Aickin J in Gronowv Gronow (1979) 144 CLR 513 at page 538:
The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent…
It is important to keep in mind the correct characterisation of an appeal based on a failure to afford sufficient weight to any particular part of the evidence. As Austin J stated in Hood & Weaver [2022] FedCFamC1A 123[12] challenges based on weight:
…can only pertain to the residual ground of appeal available in respect of discretionary judgments – namely, that the orders (not findings) are “unreasonable or plainly unjust” or “plainly wrong” (House v The King (1936) 55 CLR 499 at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 539–540; and Bugmy v The Queen (2013) 249 CLR 571 at [24], [44] and [51]–[52]). Such an argument would be ordinarily expected to assert the result is unreasonable, plainly unjust or plainly wrong because insufficient weight was given to an important piece of evidence, though it bears repeating that such submissions are rarely successful (Gronow v Gronow (1979) 144 CLR 513 at 518–520; Norbis v Norbis at 539–540).
[12] At [41]. Austin J was sitting as a single judge in the appellate jurisdiction of this Court hearing an appeal from an order made by a judge in the Federal Circuit and Family Court of Australia (Division 2).
We do not accept that the orders made by the primary judge can in any way be described as “unreasonable or plainly unjust” or “plainly wrong”. In the absence of a properly reasoned argument or at least some particulars to identify which parts of the father’s affidavit were not considered or were not given sufficient weight – this ground of appeal must fail.
THE THIRD GROUND OF APPEAL[13]
[13] Ground 8 in the Amended Notice of Appeal.
The father complains that:
8.The learned Judge failed to give adequate Reasons as to why the children’s time with the Appellant should not increase.
There were a number of critical findings made by the primary judge that underpinned the judgment at first instance:
(a)That the father had not adequately addressed his personality vulnerabilities;[14]
(b)That the children expressly stated that they did not wish their time with the father to increase;[15]
(c)That the father presented as a person who was volatile, belligerent and fixated on the mother;[16]
(d)That the father had made outlandish allegations against the mother – including repeatedly calling the mother a criminal and a liar during his oral evidence and even suggested that the mother was trying to kill him. The primary judge stated that the latter comment lacked any rational basis;[17] and
(e)That the father was continuing to demonstrate unfortunate personality traits and vulnerabilities including poor impulse control, poor judgment, rigidity, lack of insight, controlling behaviour, and emotional dysregulation.[18]
[14] Reasons for Judgment of the trial judge at [48].
[15] Reasons for Judgment of the trial judge at [58].
[16] Reasons for Judgment of the trial judge at [35].
[17] Reasons for Judgment of the trial judge at [35].
[18] Reasons for Judgment of the trial judge at [43].
The primary judge provided sufficient and cogent reasons as to why it was not in the best interests of the children that the time they spend with the father be increased.
There is no merit in the third ground of appeal.
THE FOURTH GROUND OF APPEAL[19]
[19] Ground 9 in the Amended Notice of Appeal.
In the fourth ground of appeal the father complains that:
9.The learned Judge failed to consider the Appellant’s Application that the children spend equal time in each parties’ care.
The primary judge rejected the father’s argument that there should be an equal time arrangement. As we have already stated, the primary judge explained in the Reasons for Judgment that the father had failed to properly address his personality vulnerabilities and the primary judge highlighted the wishes of the children and attached significant weight to those wishes. These aspects, in particular, led the primary judge to conclude that it was not in the best interests of the children to live in a week about shared care arrangement and, indeed, it was not in the best interests of the children to spend increased time with the father. The primary judge did consider the father’s proposal for equal time.
There is no merit in this ground.
DISPOSITION OF THE APPEAL AGAINST THE PARENTING ORDERS
The father has been unable to identify any error in the judgment under appeal. The appeal against the final parenting orders must be dismissed.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Gill, Howard & Strum. Associate:
Dated: 12 April 2024