DICKENS & LEVINE; DICKENS & DICKENS
[2017] FamCAFC 24
•21 February 2017
FAMILY COURT OF AUSTRALIA
| DICKENS & LEVINE; DICKENS & DICKENS | [2017] FamCAFC 24 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant was ordered to pay costs relating to his contravention application – Where the appellant alleges the costs order was unreasonable – Where the appellant withdrew the application after the matter had been before the Court on three occasions – Where such an order was appropriate – Appeal dismissed. FAMILY LAW – APPEAL – CONTEMPT – Where the trial judge dismissed the appellant’s application for contempt – Where the appellant challenges the weight which the trial judge gave to the evidence before him – No appealable error demonstrated – Appeal dismissed. FAMILY LAW – APPEAL – DISAQUALIFICATION – Where the trial judge dismissed an application that he disqualify himself – Where none of the grounds of appeal raise any error in his Honour’s findings – Appeal dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant required leave to appeal against procedural orders in four appeals before the Court – Whether leave to appeal should be granted – Leave to appeal refused. |
| Family Law Act 1975 (Cth) s 117 |
CDJ v VAJ (1998) 197 CLR 172
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
| APPELLANT: | Mr Dickens |
| RESPONDENT: | Mr Levine |
(EA 19 of 2015; EA 29 of 2015)
RESPONDENT: Ms Dickens
(EA 82 of 2015; EA 43 of 2016; EA 60 of 2016)
INDEPENDENT CHILDREN’S LAWYER: Moylan Family Lawyers
| (EA 82 of 2015; EA 43 of 2016; EA 60 of 2016) FILE NUMBER: | SYC | 739 | of | 2010 |
| FIRST APPEAL NUMBER: | EA | 19 | of | 2015 |
| SECOND APPEAL NUMBER: | EA | 29 | of | 2015 |
THIRD APPEAL NUMBER: EA 82 of 2015
FOURTH APPEAL NUMBER: EA 43 of 2016
FIFTH APPEAL NUMBER: EA 60 of 2016
| DATE DELIVERED: | 21 February 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 29 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 27 January 2015 17 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 255 |
REPRESENTATION
THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: (EA 19 of 2015; EA 29 of 2015) | Mr Kertesz of Delaney Lawyers |
THE RESPONDENT: In person
(EA 82 of 2015; EA 43 of 2016; EA 60 of 2016)
COUNSEL FOR THE INDEPENDENT Ms Messner
CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER: Moylan Family Lawyers
Orders in Dickens & Levine (EA 19 and EA 29 of 2015)
Leave to appeal so much of appeal EA 19 of 2015 as relates to Order 4 made by Johnston J on 27 January 2015 be refused. The balance of appeal EA 19 of 2015 against the orders of Johnston J made on 27 January 2015 be dismissed.
Appeal EA 29 of 2015 against the orders of Johnston J of 17 February 2015 be dismissed.
The appellant father pay the costs of Mr Levine of and incidental to the appeals EA 19 of 2015 and EA 29 of 2015, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of such agreement or assessment.
Orders in Dickens & Dickens (EA 82 of 2015; EA 43 and EA 60 of 2016)
The Applications in an Appeal in appeals EA 82 of 2015 and EA 43 of 2016 be dismissed.
Leave to appeal so much of appeal EA 82 of 2015 as relates to Order 2 made by Watts J on 20 May 2015 be refused. The balance of appeal EA 82 of 2015 against the orders of Watts J made on 20 May 2015 be dismissed.
Leave to appeal in relation to appeal EA 43 of 2016 against the orders of Watts J made on 1 March 2016 and appeal EA 60 of 2016 against the orders of Watts J made on 6 April 2016 be refused.
The appellant father pay the Independent Children's Lawyer’s costs of and incidental to the appeals referred to in Orders 2 and 3 hereof, in the sum of $4,310, such costs to be paid within forty-two (42) days from the date of this order.
The appellant father pay the costs of the respondent mother of and incidental to the appeals referred to in Orders 2 and 3 hereof, such costs to be agreed or assessed and to be paid within twenty-eight (28) days of such agreement or assessment.
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 Dickens & Levine; Dickens & Dickens 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 19 of 2015; EA 29 of 2015
File Number: SYC 739 of 2010
| Mr Dickens |
Appellant
and
| Mr Levine |
Respondent
Appeal Numbers: EA 82 of 2015; EA 43 of 2016; EA 60 of 2016
File Number: SYC 739 of 2010
Mr Dickens
Appellant
and
Ms Dickens
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Dickens (“the father”) seeks leave to appeal and to appeal against a number of orders made by Watts and Johnston JJ. Ms Dickens (“the mother”) is the respondent in relation to three of those applications and appeals and her partner, Mr Levine, is the respondent to two of them.
The father and mother have long been in dispute about parenting issues concerning their two children, B who was born in 2001 and C who was born in 2003.
The parties married in 1995, separated in 2008 and divorced in April 2010. The mother met Mr Levine in January 2010 and commenced a relationship with him which is still on foot.
It is the father’s contention that Mr Levine has abused the children and he has been vigorous in his pursuit of this issue. Although not limited to matters concerning Mr Levine’s alleged abuse of the children, there have to date been 27 Applications in a Case filed in the proceedings, of which 20 were filed by the father. The father has also filed three Notices of Child Abuse and eight appeals.
There was a hearing in the then Federal Magistrates Court (now Federal Circuit Court) in relation to the parenting issues over five days in August and October 2011. In December 2011 then Federal Magistrate Sexton (now Judge Sexton) ordered that the children live with the mother and that she have sole parental responsibility for them. Her Honour made orders that provided for the children to spend time with the father and further ordered that the father engage in counselling to address his emotional health. This order reflected a concern expressed by the expert retained to assess the parties, the children and relevant people and to prepare a report for the court. The expert, Dr U, having assessed the father, recommended that the father have counselling to enable him to come to terms with the break‑down of the marriage.
In May 2013 the mother applied for further parenting orders. That application has not been heard. A number of the instant appeals relate to orders made in preparation of that application for final hearing.
The father filed applications seeking to adduce further evidence in two appeals, EA 82 of 2015 and EA 43 of 2016. We will return to these applications later in these reasons.
Dickens & Levine: EA 19 of 2015 and EA 29 of 2015
The background to these two appeals can be briefly stated. On 12 May 2014 the father filed an amended application that Mr Levine be dealt with for contravening an undertaking signed by him on 8 October 2012 and filed in the Family Court on 10 October 2012. Twenty separate contraventions were alleged.
At the same time, the father also filed an amended application that Mr Levine be dealt with for contempt, and alleged six separate acts said to constitute contempt by breaching the undertaking.
On 20 May 2014 the matter came before Johnston J, who, after dealing with applications filed by the father asserting contraventions against the mother, turned to the father’s applications in relation to Mr Levine. His Honour asked the father to indicate which of the many asserted contraventions he wished to proceed with. Three were nominated by the father and set for hearing on
4 September 2014.
Appeal EA 19 of 2015
On 4 September 2014, over the father’s objections, his Honour maintained the position arrived at on 20 May 2014, which was that the purpose of the hearing was to deal with the father’s three nominated allegations of contravention against Mr Levine. Nonetheless, the father contended that he wished instead to proceed against Mr Levine on a contempt application. His Honour declined to adjourn the contravention applications. The court then commenced to hear the three contravention applications.
It is necessary to note that the father did not include in the appeal books all the relevant transcript, and at the hearing of the appeal we dismissed his application that the Court provide the transcript of the hearing on 17 February 2015. However, the father was given leave to rely on excerpts of various transcripts.
In relation to the hearing on 4 September 2014, what transpired after the father commenced to run his contravention applications is not known because that transcript is incomplete. However, it is apparent that the hearing was not concluded and the matter was adjourned to 27 January 2015. Again, the transcript of that hearing is incomplete. However, his Honour noted at the outset that he was to resume the hearing of the father’s contravention applications. It is clear though, from Order 3, made on 4 September 2014, that his Honour found a prima facie case in relation to the three asserted contraventions.
Although his Honour said that the purpose of the hearing on 27 January 2015 was to resume the hearing of the contravention applications, the father sought instead that his Honour determine a contempt charge alleged against
Mr Levine which was also before his Honour. The father said:
Your Honour, my inkling is that we could finish this contempt application today and it’s a possibility that we don’t need to proceed with the rest of the contraventions against Mr [Levine], so … if we can proceed with the contempt application against Mr [Levine] regarding the assault of my son on 14 March.
(Transcript 27 January 2015, page 3 line 6-10)
The father pressed his Honour to commence the contempt application. However, his Honour refused because, he said, he was partway through his determination of the contravention applications. His Honour said:
I understood I stood this over partway through, having made findings of a prima facie case in respect of the breaches on 19 February […] 2013 and 31 July 2013. So far, you’ve managed to establish a prima facie case in respect of those matters; that’s where I understood we were.
(Transcript 27 January 2015, page 4 line 45 – 46, page 5 line 1 – 2)
His Honour maintained his refusal to interpose the contempt application, and after a brief adjournment the father said:
…In order to save the court time, your Honour, I want to substitute those three prima facie contraventions with the contempt and just set the contempt heard today, your Honour.
(Transcript 27 January 2015, page 5 line 37 – 39)
There were then these exchanges:
HIS HONOUR: So you’re withdrawing that – those three matters – that earlier contravention application?
[THE FATHER]: That’s right, your Honour, because I don’t want ---
HIS HONOUR: You appreciate this is probably going to have financial implications.
[THE FATHER]: I understand that, your Honour. I don’t want to withdraw it, but I want […] I’m happy to let it go.
…
HIS HONOUR: The only way we’re moving to some other matter is if you make application for leave to withdraw that other contravention application that I’m halfway through.
[THE FATHER]: Yes. I will make an application for that, your Honour. Those applications – those contraventions were proven to prima facie levels, so ---
HIS HONOUR: Doesn’t mean anything.
[THE FATHER]: But I will make an application to withdraw.
(Transcript 27 January 2015, page 5 line 41 – 47, page 6 line 1 – 6, 12 – 21)
His Honour thus ordered on 27 January 2015:
4. That the father is given leave to withdraw his Contravention Application filed on 15 October 2013 and such application stands withdrawn and dismissed and removed from the Court’s list of active cases.
5. That the father pay the costs of Mr [Levine] in relation to his withdrawn Contravention Application filed by the father on
15 October 2013 other than in relation to the actual hearing on
28 January 2014 as agreed or assessed on a party/party basis.It is against these orders that the father appeals in EA 19 of 2015.
Leave to withdraw the Contravention Application – Order 4
The father asserted 11 grounds of challenge to his Honour’s order. Grounds 6, 8 and 11 go to Order 5, and we will address those grounds shortly. Grounds 1 to 4 assert errors in relation to orders made on 20 May 2014 and 4 September 2014. No appeal was brought against these orders, and thus these grounds are incompetent. Grounds 7 and 9 do not challenge any order made by his Honour at any time, and are also incompetent. Ground 10 is a general, unparticularised assertion that the judge made errors of fact and law and is incompetent as well. We do not propose to consider these grounds further.
The only ground left to consider is Ground 5. In essence, the father contends that he had no choice but to withdraw the contravention complaints because he wanted to proceed with the contempt application against Mr Levine.
The transcript clearly demonstrates that the trial judge explained to the father that no consideration would be given to the contempt application until after the contravention application hearing had concluded. The father chose to withdraw the contravention applications, and his contention that he was, in effect, compelled to withdraw the applications is baseless and this challenge fails. In any event, Order 4 of the 27 January 2015 orders is a procedural order and to appeal, the father requires leave. Though no formal application was made to the court seeking leave, with the consent of both parties, we proceeded on the basis that the grounds of appeal were the grounds on which leave was sought.
Nothing put to us demonstrates that leave to appeal should be granted.
Leave to appeal is refused in relation to Order 4.
The costs order – Order 5
As to the challenge to the costs order, the father complains that his Honour should have reserved the question of costs (Ground 6), that his Honour acted on misleading statements from Mr Levine (Ground 8), and that in general the order was unreasonable (Grounds 8 and 11).
These grounds are not made out.
The father was warned by his Honour that to withdraw the applications at that stage would have financial implications. Given that by the time the father withdrew the applications, the contravention applications had been before the court on three occasions, his Honour’s order was entirely appropriate.
We also note that his Honour accepted the evidence of Mr Levine and there is no basis on which the father can challenge that finding.
Thus the balance of appeal EA 19 of 2015 will be dismissed.
Appeal EA 29 of 2015
As the contravention applications were withdrawn by the father, the trial judge then turned to consider the father’s application that Mr Levine be dealt with for contempt by breaching his undertaking filed on 10 October 2012. The breach was said to relate to that part of the undertaking that provided Mr Levine was:
Not to discipline the children and in particular not to administer any punishment to the children.
As to what occurred in relation to this application, only excerpts of the relevant transcript were provided and they do not assist in understanding how the proceedings developed before his Honour. Nevertheless, we have his Honour’s helpful reasons to augment the excerpts of the transcript.
His Honour says in his reasons (at [3]) that when the hearing commenced he indicated his view that the alleged breach did not amount to a “flagrant challenge to the authority of the Court” as comprehended under s 112AP of the Family Law Act1975 (Cth) (“the Act”). However, he gave the father leave to have the complaint dealt with as a contravention of an order. The father acceded to that course.
The asserted breach was that Mr Levine had physically abused one of the children.
Mr Levine denied the charge. In discussion with the bench, Mr Levine’s solicitor said:
What my client will be pleading is that on that date he did discipline the children in that he sent them to bed early and that there was a – what one might term an ordinary exercise of parental discipline, but he denies all of the allegations of assault.
(Transcript 27 January 2015, page 4 line 1 – 4)
Essentially, the evidence founding the alleged contravention comprised statements of the child to the father, statements of the father’s friend, and statements made by the child to the police.
His Honour concluded:
31.There was some debate about the admissibility of those parts of the affidavits of the father and [the father’s friend] which I have included in these reasons. The material was objected to on the basis that it was hearsay. The father pressed it on the basis of s 59 of the Evidence Act, and included in our debate was reference to ss 69ZV(2) and 69ZV(3) of the Family Law Act which enable the Court to admit hearsay material and to place appropriate weight on that material. So on the basis of a combination of those provisions, that is those sections of the Family Law Act and the Evidence Act, I admitted that material.
32.There was also objection taken to the police interview of [the child] coming into the evidence and, after some consideration and including the case which was cited to me by the learned solicitor for the respondent of S v R (1999) FLC 92-834, which dealt with admission into the evidence of a transcript of a police interview, I ruled that that material could also come into the evidence. And, as I have said, that has been a large part of the father’s case. In fact, the father relies almost entirely on [the child’s] allegations as set out in that material; that is, his affidavit, that of [the father’s friend] and as contained in the police interview of [the child].
33. As I have said this is hearsay evidence. It cannot be tested in the usual manner by cross-examination. I regard this as troubling in itself. But, in my view, little weight can be afforded to this hearsay material, particularly in circumstances where the child conceded to police in statements attributed to him by his father alleging that [Mr [Levine]] had side-kicked him in the head and [the child] had been hit by a beer bottle, apparently implying that [Mr [Levine]] had been involved in that and that [Mr [Levine]] had been hitting him when the child told police this was untrue.
34. In these circumstances, in my view, the statements by [the child] to the police and to his father and [the father’s friend] must be regarded by this Court with great caution; being unreliable and not capable of supporting a finding even on a balance of probabilities that [Mr [Levine]] has dealt with [the child] in the manner alleged by the father.
35.In all the circumstances, in my view, the father has failed to establish a prima facie case for a breach of the undertaking as alleged and I propose to dismiss the application.
In his Notice of Appeal the father sets out 23 grounds of appeal. These grounds combine assertions, comment and argument, but essentially challenge the weight which his Honour gave to the evidence before him. None of the challenges though does more than contend that the father’s view of the evidence ought to have been adopted by his Honour.
In these circumstances no error has been demonstrated, and there is no substance in this appeal. The appeal will be dismissed.
Costs in relation to appeals EA 19 and EA 29 of 2015
At the conclusion of the hearing of these appeals we sought submissions from the parties as to the question of costs depending on the result of the appeals. In the event that the application for leave to appeal and the appeals were dismissed, Mr Levine sought an order that the father pay his costs of and incidental to the appeals. The father opposed the making of such an order, contending that he was not in a strong financial position, as his income is comprised of a partial Centrelink benefit which he supplements with part time work.
The determination of costs in an appeal is governed by s 117 of the Act and there are circumstances here that justify an order for costs being made. The father’s application for leave to appeal and appeals against the orders concerning Mr Levine were entirely unsuccessful and, in our opinion, never enjoyed any prospect of success. Thus, notwithstanding his modest finances, the father should be ordered to pay Mr Levine’s costs of and incidental to the application for leave and the appeals.
The mother was initially joined as a party to the father’s appeals against the orders of Johnston J. She was subsequently released as a party by orders of the Registrar made on 14 April 2015, at which time she was given leave to file a short submission regarding her costs incurred during the time she was a party to the appeals. That submission was to be filed no later than 28 days before the hearing of the appeals. However, the mother failed to comply with that order; she was then represented, but indicated to us that she either was not told or overlooked that leave had been given. She thus sought that she still be permitted to make an application for costs in relation to these appeals, and we made orders on 29 September 2016 providing for her to file a written submission as to her costs incurred during the time that she was a party to these proceedings. Orders were also made providing the father time in which to reply. No submissions were received and thus we will make no order in relation to the mother’s costs in appeals EA 19 and 29 of 2015.
Dickens & Dickens: EA 82 of 2015; EA 43 of 2016; EA 60 of 2016
To repeat, the mother’s initiating application filed in May 2013 for parenting orders has not yet been heard. A number of orders have however been made by Watts J, in whose docket the matter is listed, to ready the matter for hearing. The father has filed three appeals in relation to certain of those orders.
EA 82 of 2015
On 20 May 2015 Watts J dismissed the father’s application that he disqualify himself from further hearing the matter. On the same day his Honour dismissed the father’s Application in a Case which sought that the hearing be adjourned or stayed.
Application for disqualification
His Honour’s reasons for dismissing the father’s application that he recuse himself were delivered on 1 March 2016.
In the father’s Amended Notice of Appeal he seeks leave to appeal these orders, but leave is not required in relation to the order refusing the application for disqualification. Accordingly, moving to the relevant grounds of appeal, they raise 16 challenges to his Honour’s orders covering 20 pages. The grounds consist of comment, extracts from transcript and apparently refer to matters determined or issues raised between the parties some time earlier. For example, Ground 2 states:
Error of Law: The part of the notation and order 3 made by Watts J on
22 April 2015 which states that Mr [Levine] doesn’t need to be a party to the proceedings offended rule 6.02 of the family law rules 2004, I reproduced relevant paragraphs in verbatim below:[Rule 6.02 of the Family Law Rules 2004 (Cth) (“the Rules”) is then set out]
Similarly, Grounds 12, 14, 15 and 16 challenge orders not the subject of this appeal.
None of the balance of the grounds raises any proper or even comprehensible challenge to his Honour’s findings or reasons for refusing the application.
In the appeal hearing the father explained that the grounds identify errors of law, of fact, and in the exercise of the trial judge’s discretion which ought to have caused him to disqualify himself. The father agreed that he had put some of the asserted errors to his Honour in support of the application but conceded he had not put them all. It follows that he cannot now, on appeal, seek to complain about matters not put to the trial judge in this regard.
Regardless, none of the matters asserted was other than that: assertions of errors. Even had they been in fact errors, we do not understand how they can necessarily form the basis for an application for disqualification.
During oral argument before this Court the father further contended that the errors gave rise to bias or apprehended bias on the part of the trial judge. However, nowhere in the transcript of 20 May 2015 did the father raise an allegation of bias before the trial judge as a basis for him to disqualify himself. Moreover, we note that while he may have flirted with the topic before the trial judge, arguing to his Honour that he was denied “procedural fairness and reciprocity”, at no time did he specifically submit to his Honour that the basis of the application was apprehension of bias.
Nonetheless, his Honour appears to have proceeded on the basis that the application may have been founded on apprehended bias because he quotes the well‑known passages on that topic from Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [10].
His Honour concluded at [16]:
In his affidavit filed 8 May 2015, the father at [3] complains that on 22 April 2015 I have noted that the mother intends to make an application that her partner Mr [Levine] be relieved of an undertaking which he has given to the court. The father further refers to the fact that on 22 April 2015 there was an exchange between the court and the father about what he may or may not be able to re-agitate given previous decisions that had been made in the case. The father asserted that my failure to prevent the mother from filing an application that her partner be discharged from an undertaking previously given, led to an inconsistency in approach which provided the father with a ground to assert perceived bias. The father asserts that in me doing this there has been an “error of law, fact and judicial discretion”. It should be observed that the allowing of the mother to file such an application does not mean that the father is precluded from arguing that any such application should be summarily dismissed or dismissed as a preliminary matter having regard to the principles in Rice v Asplund (1979) FLC 90-725. In any event, if in fact any error of law, fact or the exercise of judicial discretion has taken place, then that is a matter for an appellate court to consider. Simply because a trial judge has made a determination, which one party does not accept as fair or just, does not found the basis in law for a successful application for disqualification. At [5] of the affidavit filed 8 May 2015, the father says, “There are further such examples contained in this affidavit and in written submissions I filed with my Application in a Case”. The father did not identify any further examples in the affidavit and I am unable to do so. At [26] to [29] of the father’s submissions dated 8 May 2015, the father refers to the permission of the filing of an application to re-challenge the undertaking given by the mother’s partner as offending “basic and widely adopted principles, due and proper process and procedural fairness”. For reasons already given, I do not accept that categorisation. The father makes submissions in the most general of terms about how he has been treated as a self-represented litigant in other courts on other occasions and refers to exchanges and decisions during the hearing held on 22 April 2015 without further identifying anything other than his stated concern in relation to the notation I made about the mother’s intention to make an application that her partner be relieved of an undertaking. The father makes a general submission that “judicial officers allow themselves to be unduly influenced and ring-fenced by the ICLs and by the legal representatives of the parties in lieu of familiarising themselves with the evidence”. The father has not provided any evidence to substantiate that submission in the context of this disqualification application.
Thus the father’s application was dismissed. Nothing in the grounds or in the written or oral arguments demonstrates any error in his Honour’s findings or any basis for appellate intervention. The challenges to this order are not made out.
Refusal to adjourn
By application filed on 8 May 2015 the father sought an order that the hearing of all outstanding matters between the parties be either adjourned or stayed pending determination of the father’s appeals to the Full Court and his two applications for special leave to appeal to the High Court. The father argued that the determination of the appeals was necessary before there could be any consideration of the parenting issues as between the parties.
His Honour refused the application, noting that both the mother and the Independent Children’s Lawyer opposed the application.
His Honour concluded that there was no reason why orders could not be made readying the parenting matter for hearing, such as ordering the preparation of an expert’s report, notwithstanding the extant appeals and applications. Thus his Honour dismissed the father’s application by Order 2 of 20 May 2015.
The father requires leave to bring an appeal against this order, it being a procedural order.
Nothing in his written or oral material satisfied us that leave to appeal should be granted.
We also find that even if leave is granted and the appeal is allowed, it would be an exercise in futility to revisit the application to adjourn given the passage of time, and for that reason as well, leave should be refused.
Leave will be refused in relation to Order 2, and the balance of appeal EA 82 of 2015 will be dismissed.
Appeal EA 43 of 2016
On 1 March 2016, Watts J ordered that Dr U be appointed to prepare a report in relation to the parenting issues.
On the same day his Honour refused the father’s application that the solicitor for the Independent Children’s Lawyer be discharged.
Appointment of Dr U
Dr U had been appointed to prepare a report in relation to the parties’ parenting disputes for the hearing of the parenting issues in 2011. There seemed to be no dispute between the parties that there should be an expert appointed in relation to the current parenting issues, and, as his Honour said, “[t]here seems to be possible continuing controversy in relation to the mental status of both the parties” (at [26]).
Before his Honour, the father opposed the appointment of Dr U and advanced a number of reasons why that was so. The father also proffered as an alternative another psychiatrist, Dr AA. Both the Independent Children’s Lawyer and the mother supported the appointment of Dr U to prepare an updated report.
His Honour set out in some detail the bases for the father’s objections to the appointment of Dr U which included an assertion that the expert had “ignored” Mr Levine’s abuse of the children (at [31]).
His Honour rejected the father’s objections and ordered that Dr U be appointed as the expert.
In his Amended Notice of Appeal the father sought leave to appeal this order, and set out 26 pages of narrative including recitation of transcript in support of that application, and the application for leave to appeal the order refusing to discharge the Independent Children’s Lawyer. He then raised 10 grounds of appeal (numbered 9 – 18) if leave was granted, and set them out in another 10 pages of narrative.
No basis was established for the granting of leave to appeal this order. Moreover, the proposed grounds of appeal if leave was granted are incompetent, and one example, namely Ground 15, will suffice to demonstrate that:
Error of fact: Re [33] of the reasons delivered 1 March 2016 by Watts J. The orders made by the court provided Dr [U] with access to all material including the subpoenaed material. It is the Independent Children’s Lawyer [sic] duty to liaise with the expert in this regard. At the beginning of his 2011 report Dr [U] acknowledged his legal and professional obligations to make all necessary enquiries and inspect the evidence made available to him, especially matters of significance. The evidence I provided in my Affidavit filed 10 March 2014 shows that he failed to do so and then lied under oath.
As before his Honour, the father’s submissions in the appeal about the unsuitability of Dr U amount to no more than unsupported assertions based on the father’s interpretation of events and statements.
Discharge of the Independent Children’s Lawyer
By an application sought to be filed on 1 October 2014, the father sought that the Independent Children’s Lawyer be discharged. The supporting affidavit and thus the application was rejected for filing, however the father was given leave to make an oral application in the same terms before his Honour.
In his Honour’s reasons for decision of 1 March 2016 dismissing the application, his Honour refers to the basis of the father’s application. In particular the father contended that the mother told the Independent Children’s Lawyer that one of the children had been issued with a “blue card” which we understand to be part of the school’s system for putting children on notice about their behaviour. The father’s complaint about the Independent Children’s Lawyer was that he accepted the mother’s assertion and did not independently verify the correctness of the statement. In oral argument on this point, the father developed the theme to the point that he contended that it was the duty of the Independent Children’s Lawyer to check the correctness of every statement “of significance” made by either party in the proceedings. The ludicrous nature of the submission need only be set out to be demonstrated.
As with the application for leave to appeal the order that Dr U be appointed, the application for leave in relation to this order also fails the tests for granting leave. Nothing put to the Court establishes a basis for a grant of leave to appeal. Thus leave will not be granted in appeal EA 43 of 2016.
In relation to the proposed grounds of appeal of which there are seven, they are spread out over 16 pages of narrative and do no more than assert that his Honour made various errors of fact in not accepting the father’s assertions about the Independent Children’s Lawyer and his conduct. They do not raise any comprehensible or competent challenge to his Honour’s orders.
Appeal EA 60 of 2016
On 10 December 2015 the father issued a subpoena to the NSW Police. On
9 March 2016 the father filed an application seeking production of the documents to which the subpoena related.
On 6 April 2016 Watts J made the following orders and notations in chambers:
1. The father filed a subpoena on 10 December 2015 directed to the Proper Officer, New South Wales Police, which was returnable on 27 January 2016.
2. The father forwarded an email to the case coordinator on
29 February 2016 indicating that he was not satisfied that the police had complied with the subpoena and sought to relist the subpoena for a hearing at short notice.3. On 29 February 2016 the father was advised by email of the following:
“The Registrar advises that this is not a matter for re-listing. The matter has been listed in a court subpoena list once, and the subpoenaed entity maintains they have complied.”
4. On 9 March 2016 the father filed an Application in a Case seeking to set aside the Registrar’s decision and other orders directed to the police to produce documents.
5. The associate of the Case Management Judge indicated in an email to the father on 17 March 2016 that the matter would be dealt with in chambers and the father was invited to provide any further written submissions.
6. The father filed further written submission on 21 March 2016.
7. The issue in relation to the subpoena is to be determined in the course of the final hearing in which I am part heard as the Trial Judge.
8. The father’s Application in a Case filed 9 March 2016 be listed before me on the next scheduled date this matter is before me (a date to be set after receipt of the expert report which I ordered on
1 March 2016).The father seeks to appeal against orders 7 and 8. His contention is that his Honour should have dealt with the matters immediately. His grounds of appeal, which again are in the form of a narrative extending over a number of pages, contend that the orders prevent him from having access to admissible evidence, allege bias (although, given the matter was heard in chambers, it is difficult to understand how this claim could be asserted) and a violation of the father’s human rights.
Leave is required to appeal these procedural orders, and again the father sets out the basis for this in a lengthy narrative. However, not only would no substantial injustice result if leave was not given, the grounds themselves are an affront and reveal no conceivable error in his Honour’s decision. Leave will not be granted.
The father’s applications to adduce further evidence
Applications to adduce further evidence were made in relation to appeals EA 82 of 2015 and EA 43 of 2016.
The evidence sought to be led, if leave was granted, was said to be “fresh evidence not included in prior affidavits and other relevant material not dealt with by the court”. However, not only was it difficult to appreciate the nature of this evidence, it was also not readily apparent to which appeal or to which ground or grounds of appeal this evidence was relevant. Thus, we attempted to establish with the father firstly what the evidence indicated and secondly, its relevance to the appeals applying the principles espoused in the High Court decision of CDJ v VAJ (1998) 197 CLR 172.
That exercise was entirely unsuccessful, and we have no hesitation in finding that none of the evidence sought to be adduced could conceivably fall within any of the circumstances referred to by the High Court which would allow its receipt. Accordingly, these applications will be dismissed.
Costs in relation to appeals EA 82 of 2015; EA 43 and EA 60 of 2016
At the conclusion of the hearing of these appeals we sought submissions on costs depending on the result of the appeals.
In the event that the applications for leave to appeal and the appeal were dismissed, the mother and the Independent Children’s Lawyer sought orders for costs. Those applications were opposed by the father on the same basis as previously, namely his poor financial circumstances. However, once again the father has been wholly unsuccessful and this circumstance justifies orders for costs being made (s 117(2) of the Act). Moreover, as in appeals EA 19 and EA 29 of 2015, the father’s applications for leave to appeal and his appeal had little or no prospect of success, and thus, despite his financial circumstances, he should be ordered to pay the costs of the mother and the Independent Children’s Lawyer.
The mother was unaware of the amount of her legal costs, and thus they should be assessed in default of agreement. The Independent Children’s Lawyer sought a fixed sum of $4,310. We consider that to be reasonable in the circumstances and an order will be made in those terms.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie‑Wallace & Aldridge JJ) delivered on 21 February 2017.
Associate:
Date: 21 February 2017
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