Doherty & Doherty
[2014] FamCAFC 20
FAMILY COURT OF AUSTRALIA
| DOHERTY & DOHERTY | [2014] FamCAFC 20 |
| FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – family violence – Whether the trial judge failed to have any or any proper regard to the provisions of sections 61D and 65DAC of the Family Law Act – Whether the trial judge failed to give any or any adequate reasons for the orders made by her – Whether the trial judge orders are inconsistent with the findings made by her as to the relationship between the parties and the best interests of the child – where the appeal is dismissed. FAMILY LAW – APPEAL – Delay – where there was delay in delivering judgment – Whether the trial judge should have invited further submissions from either party on any changed circumstances before delivering judgment – where the appeal is dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Self represented litigants – assistance from the bench – Whether the trial judge failed to provide to the appellant notice of his right to cross examine – where the appeal is dismissed. FAMILY LAW – COSTS – where a party was wholly unsuccessful – where the unsuccessful party is to pay costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth): ss 61D, 65DAC, 65DAA, 69ZN(6) |
Evidence Act 1995 (Cth)
R v Alexander and Taylor [1975] VicRp 74; [1975] VR 741
Weston & Laurent [2013] FamCAFC 34
Stead v State Government Insurance Commission (1986) 161 CLR
Jones v National Coal Board [1957] 2 QB 55
Rollings & Rollings (2009) 230 FLR 396
McCrossen & McCrossen (2006) FLC 93-283
Weston & Laurent [2013] FamCAFC 34
| APPELLANT: | Mr Doherty |
| RESPONDENT: | Ms Doherty |
| FILE NUMBER: | BRC | 5443 | of | 2008 |
| APPEAL NUMBER: | NA | 2 | of | 2013 |
| DATE DELIVERED: | 19 February 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Tree JJ |
| HEARING DATE: | 18 September 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 14 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1365 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Brasch |
| SOLICITOR FOR THE APPELLANT: | HopgoodGanim Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms J E Farr |
| SOLICITOR FOR THE RESPONDENT: | Burchill & Horsey Lawyers |
Orders
The appeal against the orders of Federal Magistrate Demack (as she then was) made on 14 December 2012 be dismissed.
The father pay the mother’s costs of and incidental to the appeal. Such costs to be agreed or assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Doherty & Doherty 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 BRISBANE |
Appeal Number: NA 2 of 2013
File Number: BRC 5443 of 2008
| Mr Doherty |
Appellant
and
| Ms Doherty |
Respondent
REASONS FOR JUDGMENT
Mr Doherty (“the father”) appeals parenting orders made in the Federal Magistrates Court by Federal Magistrate Demack (as she then was) on
14 December 2012 in relation to the child who was born in September 2005. Ms Doherty (“the mother”) resists the appeal and seeks to maintain the trial judge’s orders.
To give context to the appeal, it is helpful to set out some background. The matters are taken from her Honour’s judgment and are non-contentious.
The parties met in 2001. The mother lived in Eastern Europe. The father travelled to Eastern Europe to meet her and they travelled to Western Europe before returning to Australia to live. They began to live together in August 2002. They married in April 2003.
After the parties married they lived in a suburb of Brisbane in a house owned by the father. They lived there for most of their relationship. The father conducted a business in Brisbane of importing goods from Asia to Brisbane.
The parties separated in June 2008. The circumstances of the separation are somewhat contentious. The mother alleged that the father became angry and grabbed her. The father denied that he had been violent to her. Nonetheless, the parties separated and the mother left the house taking the child with her. The mother moved into a shelter for women.
After the separation the father, on 25 June 2008, applied to the court for location and recovery orders. While the orders were made, it seems that they were not acted on.
On 15 July 2008 the parties consented to orders that the child live with the mother and spend time with the father two days each week for five hours at a time. The time was to be supervised by a family friend.
In late July 2008 the parties reconciled and re-commenced living together.
The father’s family live in country NSW and the parties spent considerable time there with the father’s family from Christmas 2008 through March 2009, in which month they finally separated.
After separation, the parties agreed that the child would spend time with the father in country NSW from 30 March 2009 until 1 April 2009. It was further agreed that the mother would speak to the child each night by telephone. The agreement provided for the mother to spend time with the child.
Nonetheless, the mother did not see the child for the next seven months, but for a short visit supervised by the father in June 2009. The father told the mother that the child was not to leave the town in country NSW and if she wished to see the child, the mother could travel there to do so. Although the mother did not see the child in that time, she spoke to her twice each day.
On 25 August 2009 the mother commenced parenting proceedings in the court and on 23 November 2009, interim orders were made that provided for the child to live with the mother and spend time with the father both in country NSW and in Brisbane. The child returned to her mother’s care on 26 November 2009 and has thereafter remained in her care.
The proceedings were heard over two days, 4 and 5 November 2010 and adjourned part heard. The matter was concluded on 4 and 5 April 2011. Reasons were delivered on 13 December 2012. Her Honour made orders that the child live with the mother and spend time with the father. She also made orders in relation to parental responsibility. The orders for parental responsibility were the subject of challenge and will be set out in full later in these reasons when we turn to a consideration of ground 1.
The father appeared for himself in the hearing before her Honour. The mother was represented by counsel. On the appeal, both the father and the mother were represented by counsel.
The trial judge’s reasons
Her Honour had the benefit of two family reports prepared by Ms F and the report of a psychiatrist, Dr L. Her Honour observed that the father had consulted Mr P, a clinical psychologist from whom he sought an assessment of his psychological functioning. Mr P’s report was relied on by the father and was also provided to Ms F for consideration. Mr P was not cross examined in the proceedings. The father also sought out the assistance of a clinical psychologist, Mr B and he started therapy with him for stress and anxiety concerning the child [34].
Her Honour said:
35.It was plain to [Mr B] that the father was asserting that he believed his wife suffered from a borderline personality disorder and arising from what Mr [Doherty] told [Mr B], [Mr B] formed the view that:
The descriptions that [Mr Doherty] has provided of interactions with his wife do appear to be consistent with possibility that she may suffer from borderline personality disorder and this would also be consistent for the concerns he has for the welfare of his daughter.
In his report in the matter the single expert Dr L noted that while the husband asserted that the mother had a psychiatric condition, said he concluded that the mother “does not have Borderline Personality Disorder or any other form of Personality Disorder” [38].
In considering the parties’ competing positions before her, the trial judge indicated that the father’s preferred position was that the mother and child live in country New South Wales and that the child then would spend equal time with him as with her [57]. The mother wished to remain living in Brisbane and suggested that the father see the child each second week from Friday until Tuesday and for half of all school holidays.
Her Honour found that the child would benefit from having a meaningful relationship with each parent [61].
She then considered the mother’s assertion of family violence by the father and the father’s assertions that the mother had significant deficits in her parenting which the trial judge took to amount to an allegation of neglect rather than abuse [62]. Her Honour set out the father’s allegations of the mother’s deficient parenting. She further noted that the father continued to assert that the mother had a psychiatric condition and concluded that it was difficult for her to accept the father’s criticisms of the mother without independent support. She continued:
68.… If the mother’s parenting has all of the significant deficits that the father asserts, it would seem unlikely that the child would have escaped unscathed particularly when predominantly in the mother’s care during the time of the family report interviews. …
Her Honour rejected the father’s contention that the mother had a psychiatric illness noting that there was no corroborative evidence to support it and it had been discounted by the single expert [68].
Her Honour concluded that there was no evidence that the child had suffered as a result of any abuse or neglect by either parent and that she was not at risk of harm from abuse or neglect [70].
Turning to the mother’s assertions of family violence by the father and after analysing the evidence, her Honour concluded at [89] that “…it is reasonable for the mother to be apprehensive about her personal wellbeing or safety with the father arising out of the events of their marriage.”
The trial judge noted that the distance between the parties’ residences is some 400 kilometres which posed practical difficulties in the child spending time with the parent with whom she will not be living.
After noting that the father complained that there were times when the child was not made available for telephone contact [101], the trial judge turned to the circumstances of the seven months in which the father kept the child in his sole care. Her Honour said:
102. … it seems to me that it was a wholly unchild-focused response and position of the father’s to insist that the mother attend to visiting the child only in [country NSW]. The fact that the father had settled in his mind that he intended to live in [country NSW] does not excuse him from not providing regular and reliable times for the child to travel to Brisbane to spend time with her mother in Brisbane. … The fact that he allowed it to continue for so long demonstrates it seems to me, a focus on being successful in his dispute with the mother rather than an appropriate focus on the child. It would have surely be [sic] plain to the father that it was important for the child, for her relationship with the mother, to be facilitated on a face to face basis, frequently, regularly and reliably.
Her Honour, in considering the proposals of each party, noted that a move by the child to live with the father in country NSW would be familiar to her and “plainly idyllic” [104].
Her Honour found:
105. A concern for both the family report writer and the Court is whether the father is supportive of, and committed to, [the child]’s relationship with her mother. In the event that he is not (and his actions in not providing a real mechanism that the mother was able to take up of [the child] spending time with the mother during the seven months in 2009 demonstrates that he did not in the past), then the change for [the child] if she lives with her father is the real possibility that she will not be supported in her relationship with her mother by her father.
Her Honour considered the issue of parental responsibility and the presumption of equal shared parental responsibility at [112]. She referred to her finding that the father had perpetrated family violence towards the mother during the relationship and observed that the parents do not have the capacity to communicate with each other about matters of significance to the child. Paragraphs [112] and [113] of the reasons are central to arguments by the appellant in respect of ground 1 and will be set out later in these reasons when dealing with this ground.
Her Honour did not consider that the mother had the capacity to move with the child to country NSW [117] nor was it in the father’s capacity to live somewhere other than country NSW [120].
The trial judge concluded that it was in the child’s interests to live with the mother and spend time with the father. She made orders that provided for mechanisms by which the father could spend time with the child.
The appeal
The father relied on 5 grounds of appeal in challenge of her Honour’s decision.
Ground 1. In making the orders for parental responsibility in paragraph 2 and 4 of the orders made on 14 December 2012, the Federal Magistrate erred in that she:
a. Failed to have any or any proper regard to the provisions of sections 61D and 65DAC of the Family Law Act;
b. Failed to give any or any adequate reasons for the orders made by her;
c. Made such orders inconsistently with the findings made by her as to the relationship between the parties and the best interests of the child.
The essence of the argument in support of this ground of appeal is that orders
2 and 4 made by her Honour are inconsistent and together do not constitute an order for equal shared parental responsibility.
We set out orders 2, 3 and 4:
2. That the mother have sole parental responsibility for the child EXCEPT as regards all decisions in relation to the child’s name, religious upbringing, and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either of the parents.
3.That in exercising sole parental responsibility, in relation to issues referred to in Order 2 hereof, the mother must:
a. Consult the father in relation to any decision to be made about that issue;
b. Make a genuine effort to come to a joint decision about that issue; and
c.In the event that the parents are unable to come to a joint decision about that issue, the mother is to notify the father of any decision relating to the issue within seven (7) days of making such decision.
4. That subject to Orders 2 and 3 hereof, the mother and father have equal shared parental responsibility for the child in relation to all other issues, and shall:
a. Inform the other parent about the decision to be made;
b. Consult with each other on terms that they agree; and
c. Make a genuine effort to come to a joint decision.
It is further asserted that not only are her Honour’s orders inconsistent with each other in terms of their operation but her Honour’s consideration of the matters informing those orders was confined to two paragraphs in her reasons; which are in these terms:
112.The presumption that the parents hold parental responsibility is capable of being rebutted on the basis of child abuse or family violence. I have found that the father has been the perpetrator of family violence on the mother during the relationship. If that is not of itself, sufficient to rebut the presumption, it seems to me that the consideration of the best interest factors would demonstrates that it is contrary to the best interests of [the child] for her parents to have equal shared parental responsibility. They do not exhibit the capacity to communicate with each other usefully about matters of significance to the child. Their inability to communicate, may, in part, be a continuation of the dynamic which had included the family violence. It seems to me that it is likely that that is the case, and that that outcome highlights to requirement for one parent to have the capacity to make decisions.
113. The orders that the mother seeks with respect to parental responsibility is not a blanket order. She seeks an order which would compel the parents to both hold parental responsibility with reference to the child’s name, religious upbringing and changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with either of the parents. Further the mother seeks to be compelled to consult the father about decisions that need to be made in the exercise of her sole parental responsibility and that it is only in the event the parents are unable to come to a joint decision that the mother would be empowered to make a decision on her own behalf. Taking into account my findings with respect to family violence and my other concerns with respect to the parents’ significant inability to communicate appropriately and usefully and purposely with each other, I am satisfied that the order that the mother seeks is in the best interests of [the child].
Before turning to a consideration of the arguments in respect of ground 1, we should observe (although it is not the subject of any ground of appeal nor was it referred to in argument) that her Honour is not correct in saying that the
s 61DA presumption “is capable of being rebutted” by findings of child abuse or family violence. The legislation makes plain the seriousness with which each must be treated by the court by rendering the presumption inapplicable if those relevant findings are made and, by contrast, rebuttable if relevant findings as to best interests are made. The distinction is underscored by each being the subject of different subsections of the Act (s 61DA(2) and (4) respectively).
Apart from paragraphs 1 to 8 in the written submissions of the father, no oral argument was addressed to this ground. While we make no criticism of counsel for the father for adopting that course, we find the submissions on the ground rather opaque. Paragraphs 1 through 5 of the written submissions merely provide a description of the orders which her honour makes. Paragraph 6 refers to an asserted inconsistency between the orders numbered two and four.
We accept that the wording of the introduction to order 4 may lack some felicity of expression in the use of the phrase “That subject to Orders 2 and 3 hereof, the mother and father have equal shared parental responsibility for the child in relation to all other issues …” We accept the submission of the mother on this point that the words intend to give effect to her Honour’s reasons which were to order that the mother have sole parental responsibility for all matters save for those to which order 2 refers and the words “all other issues” refer to those matters excepted.
It is not at all clear that any appealable error is asserted in respect of this infelicity of expression. To the extent that it is, we consider that her Honour’s intention is made clear by what her Honour found and said at [112] and [113] of the reasons. To the extent that it is necessary for greater clarity to attend the orders, an application can be made for amendment pursuant to the “slip rule”.
That matter aside, there is merit, we think, in the assertion that, apart from her Honour saying that the mother sought an order in those terms, her Honour’s reasons do not provide a basis for understanding why the child’s name and religious upbringing are the subject of specific attention in paragraph 2 of the orders; nothing to which we have been taken nor anything in her Honour’s reasons suggests that either was an issue joined between the parties. However, nothing turns on either matter; those parts of the orders do not remove any “rights, duties, responsibilities or authority” of the father, they are inclusive of a role for him in each such respect. By way of contrast, the circumstances of the case and her Honour’s reasons reveal plainly a basis for the concluding part of the order pertaining to the child’s geographical living arrangements.
It seems that the central challenge to which ground 1 is directed is embraced by paragraphs 7 and 8 of the appellant’s written submissions:
7.A consideration of ss 61D and 65DAC do not enable the combination of paragraphs 2 and 4 of the orders made by the trial Judge to constitute an order for equal shared parental responsibility. In determining the orders to be made in relation to parental responsibility either in the terms which the trial Judge ordered them, or otherwise, the path of reasoning that leads to the conclusions reached by the trial Judge must be clear. The reasons under this head are confined to two paragraphs numbered 112 and 113.
8.In paragraph 113 the trial Judge accepts the nature of the orders proposed by the mother with respect to parental responsibility. Such orders are not consistent with the findings made in paragraph 112 said to justify the rebuttal of the presumption of equal shared parental responsibility in s 61DA. The reasons provided by the trial Judge provide no path or reasoning that leads the trial Judge to accept the proposals of the mother in relation to that significant issue.
In so far as the challenge is to the adequacy of reasons, we consider it has no merit; her Honour’s intention, in our view, is made entirely apparent in [112] and [113] of her reasons. Her Honour plainly considered, as was well open to her, that, her findings, for example, the finding of past violence, the conflicted parental relationship at [100] and the “fail[ure] of the father to facilitate a relationship between [the child] and her mother during the seven months that he kept [the child] in his sole care in [country NSW]” at [102], were productive of the findings made ultimately at [112] and [113]. It will be clear that we do not accept the further submission under this ground that [112] and [113] are the entirety of her Honour’s reasons for making the orders she did in respect of parental responsibility.
To the extent that the challenge is based on asserted error other than adequacy of reasons, it appears to be based upon an assertion that the orders as made cannot sit with what s 61D and s 65DAC require. The first observation to be made is that s 65DAC is applicable not only when the presumption of equal shared parental responsibility applies or where, independent of that presumption, an order to that effect is made; it also applies whenever “2 or more persons are to share responsibility for a child” and where “the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to a child”. The section applies whether parental responsibility in respect of a long-term issue is shared equally or otherwise. Secondly, and importantly, the section’s use of the singular and the definition of “parenting order” in s 64B is each indicative of the fact that parental responsibility for some long term issues may be shared while others may not and, additionally, that parental responsibility for some issues might be shared equally while others are not shared equally or not shared at all. Finally, the fact that the presumption is rendered inapplicable or rebutted has an effect upon the process required by s 65DAA, but it does not affect the nature of the orders that can be made, including orders that attribute parental responsibility in respect of some of the “powers, duties, responsibilities and authority which, by law, parents have in relation to children” (s 61B).
It follows that, once the infelicity of language earlier referred to is excused, there is no error per se in her Honour ordering parental responsibility in respect of some aspects of parental responsibility to one parent and ordering equal shared parental responsibility in respect of other aspects of parental responsibility. It is true that the trial Judge made a finding (at [112]) as to the parents’ inability to co-operate and their incapacity to make decisions jointly. But, that finding must be seen in light of the finding at [113] that the mother did not seek a “blanket order” the effect of which would be to exclude the father from decision making for every decision relating to every major long-term issue. Rather, her Honour accepted the mother’s submissions that some decisions were such that, despite the finding at [112], they should involve consultation and the like. That approach was open to her Honour and is consistent with the Objects and Principles of Part VII. Importantly, her Honour makes it explicit in the reasons, that she arrives at those decisions despite the findings at [112]. (See, in that respect, the concluding two sentences of [113]).
This ground has not been made out.
Ground 2. The Federal Magistrate erred in determining that the Family Law Act required her to apply the provisions of section 65DAA of the Family Law Act once she had determined the issue of parental responsibility when such requirement existed only if the Court made an order for equal shared parental responsibility when such orders as were made by the Federal Magistrate did not amount to such an order.
Having found the presumption of equal shared parental responsibility rebutted by her findings, (noting what has been said earlier with respect to the distinction between s 61DA(2) and (4)), it is correct to say that the trial judge was not obliged to then consider the issue of whether the parties should have equal time or substantial and significant time with the child. However, that she was not so obliged does not mean that the quantity and quality of the time to be spent between the child and her parents has no place in her considerations. Plainly, it does so. Moreover, the fact that her Honour was under no obligation to consider s 65DAA mandatorily does not mean that the other matters referred to in that section (for example, “reasonable practicability”) cannot, or should not, be considered if her Honour considered it appropriate to do so.
Her Honour, at [114] and following, considered where the parties were likely to live and their reasons for their decisions in that regard. Clearly those matters were important in considering what orders for time between the child and her parents were in her best interests.
Again, no error of law or principle is propounded in this ground and it is not submitted that her Honour’s consideration of these matters caused the exercise of her discretion to miscarry.
We find no force in this ground of appeal.
Ground 3. The Federal Magistrate erred in failing to discharge the onus imposed on the court by a delay of over 19 months from the date of the last submission to the Court which onus required the disclosure of all of the evidence before the court giving rise to each of the findings made by the Court.
There is no doubt that there was considerable delay between the delivery of final submissions and judgment.
The thrust of the appeal is to suggest that, in light of the lengthy delay, the trial judge was obliged to “…disclose all of the evidence giving rise to each of the findings made by the Court…” and in particular it was argued that her Honour was obliged to do this in relation to the findings operating to rebut the presumption of equal shared parental responsibility (Appellant's Summary of Argument, paragraph 11). Further it was submitted in the same paragraph:
… Such disclosure of each of the facts which led to the conclusions reached on those aspects are not evident from the reasons of the trial Judge.
First it must be observed that, as the appellant properly concedes, delay, per se, does not amount to appealable error.
In Rollings & Rollings (2009) 230 FLR 396 the Full Court said:
65.In McCrossen the Full Court (Bryant CJ, Finn and Coleman JJ) said at 80,848, that in Monie Hunt AJA at [43], with whom Giles and Bryson JJA agreed, “summarised the approach taken”. We do not propose to repeat all of what Hunt AJA said, however he did say:
[44] It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given. Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial. Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge’s failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge — either because of the time which has passed or because of the pressure on the judge in the end to complete the judgment. …
66.In McCrossen the Full Court, referring to R v Maxwell and NAIS, at [94] said that “[w]hilst careful scrutiny is called for by the Appellate Court, subject to that scrutiny … delay is not itself a ground of appeal”. It is for this reason that in relation to the first ground of appeal the Husband did not submit that the appeal could be upheld solely based upon a delay between the end of the hearing and the date of the judgment.
67.The authorities thus establish that if there is a delay between the conclusion of the hearing and judgment, presumably with contemporaneity of reasons, the delay is not in itself a ground of appeal and it is not, as argued in McCrossen, a denial of a fair trial and/or a miscarriage of justice. However the delay does mean that on appeal there has to be greater scrutiny of the findings made by the trial judge. As Giles JA said in Monie at [3]: “extensive delay may cause an appellate court to take a more stringent approach in determining whether error has been demonstrated in the trial judge’s findings or whether the trial judge’s reasons are adequate”.
It was argued that the delay should invite care in approaching the findings of the trial judge in matters of credit or indeed on fact-based findings. That submission, too, is consistent with authority. It is not asserted in this appeal that her Honour made any error of fact. It is not asserted that any factual finding or, for example, any credit finding, was impacted by the delay (regrettable though it may certainly be). While it is argued (Appellant's Summary of Argument, paragraph 12) that “ … the trial Judge provided to neither party leave to adduce further evidence of facts which might have occurred after the close of evidence and which were relevant to each of the issues the trial judge had to address”, neither written nor oral argument identified any evidence that should have been, or would have been, the subject of any such application.
However, it was submitted that where the trial judge’s reasons do not specifically refer to evidence or submissions, the Full Court ought not readily conclude that the evidence and submissions were in the forefront of her Honour’s mind while writing.
It was submitted that her Honour made no mention of the father’s written submissions in respect of Dr L’s opinion. It was argued that had judgment been delivered earlier, this court might assume that her Honour had read those submissions and taken them into account in her determination, however, given the delay, this could not be assumed.
We are not prepared to assume that her Honour’s failure to refer to the father’s submissions about Dr L’s opinion was because she had overlooked them. The father’s submissions, the text and substance of which we will refer to when considering ground 4(ix), were in our view of no weight in her Honour’s determination of the issue to which Dr L’s opinion spoke (the mental health of the mother and father). It is entirely understandable that her Honour chose not to make specific reference to them.
Before leaving this ground, we observe that it is indeed unfortunate that there was such a delay between the close of evidence and the delivery of her Honour’s reasons. It should not be thought that in each case in which a delay of this order is evident it would have no significance in the determination of an appeal.
This ground has not been made out.
Ground 4. The Federal Magistrate erred in that prior to delivering judgment she failed to provide leave to either party to adduce further evidence of facts which might have occurred after the close of evidence in the proceedings relevant to the best interests of the child.
The deficiencies in the arguments in this ground have already been referred to in the context of the previous ground. It was argued that the trial judge failed to invite the parties to adduce evidence of any changes in circumstances that had arisen after the close of evidence and submissions. It was asserted that this failure is particularly important because the father was then self represented. There is no dispute that her Honour did not invite further submissions from either party on any changed circumstances before delivering judgment. Neither in written or oral submissions was any matter of changed circumstances raised as being relevant to her Honour’s decision but which, because of the delay in delivering judgment, was not considered by her. It was not suggested that an application was made by either party to her Honour to reopen the evidence to consider any changed circumstances.
Merely to assert that her Honour failed to afford the parties the opportunity to reopen the evidence without reference to any relevant matter that would have been raised had the opportunity been given does not amount to appealable error.
This ground has not been made out.
Ground 5 concerns the conduct of the trial by her Honour and the father as a self-represented litigant. The ground consists of several particulars. Particular vii) was not pressed in argument. Counsel for the father focussed her oral argument on three of the particulars; ii), viii) and ix), relying on the written argument as to the balance of the particulars.
Ground 5. The trial Federal Magistrate erred in that she failed to follow the guidelines imposed on the Court by reason of the fact that the appellant was self represented and in particular:
i) Failed to provide advice to the appellant of his right to apply to reopen the evidence especially in the case of a delay in the delivery of judgment;
The thrust of this ground has been considered and rejected in the discussion of grounds 3 and 4 of the appeal, the latter of which addressed specifically the delay in delivering the judgment. As we have observed, given that no fresh or changed circumstances were pointed to which would have provided the basis for reopening the evidence, this complaint is without foundation.
ii) Failed to provide to the appellant notice of his right to cross examine witnesses and the consequences arising in the event that he chose not to do so;
The written submission asserts:
14. (b) The trial judge did not inform the Appellant of the manner in which the trial was to proceed and the right which he had to cross-examine witnesses.
To the extent that this particular is a general assertion of error in the sense that the trial judge failed to assist the father in understanding the trial process and, in particular the cross examination of witnesses, we reject it.
On 13 October 2010 her Honour conducted what appears to have been a
pre-trial hearing in which she checked that previous directions had been complied with. Her Honour had what she described as a “chat” with the father about the trial process. It is unnecessary to set out the whole of the matters to which her Honour referred but for observing that it occupies several pages of transcript and, in our view, provided the father with a comprehensive and helpful overview of the trial process, the procedure for the taking of evidence, the distinction between evidence in chief and cross examination and the difference between evidence and submissions.
In oral argument, counsel for the mother conceded that her Honour did provide the father with information about the trial but asserted that she did not tell him that if he did not cross examine, the evidence would be accepted unchallenged.
As will shortly be seen in our discussion of particular ix) of this ground, the trial judge did indeed tell the father exactly that. In the course of discussing the attendance of Dr L for cross examination, her Honour said to the father:
… If you can’t get Dr [L], then his affidavit will go in as it is.
(Transcript dated 4 November 2010, page 11 line 1)
It seems to us that her Honour told the father exactly what would happen if cross examination did not take place.
Finally it was argued that the gravamen in the ground was exemplified by what occurred at the conclusion of the questioning by the parties of Ms F, the author of the family reports. Her Honour asked Ms F some questions and did not invite either the father or mother’s counsel to ask any questions that might have arisen from her questions. This it was argued demonstrated
her Honour’s failure to afford the father procedural fairness.
Counsel for the father was not able to articulate what injustice flowed from this failure. If this could be categorised as a failure to afford the father procedural fairness, and we do not accept that it necessarily could be seen as such, it is not enough to point to the failure and argue error. Some injustice or detriment must result from the asserted failure. None was asserted and none is apparent. There is no substance in this particular of the ground.
iii) Failed to advise the appellant of his inability to rely upon evidence that was not sworn to be the author of such evidence;
It is difficult to understand to what aspect of the trial this particular of the ground addresses; certainly it is unclear on its face. Further, no part of the written submission addressed this issue. In the absence of any elucidation of the point, we do not propose to engage with it further.
It is convenient to consider particulars iv) to vi) together.
iv) Failed to advise the appellant that in order to produce documents from a witness it was necessary that a subpoena to that witness require production of defined documents;
v) Failed to advise the appellant of his right to apply to rely upon evidence given at earlier proceedings before the same Federal Magistrate;
vi) Failed to advise the appellant advice that he was entitled to make submissions as to proposed directions for the cross examination of witnesses.
In relation to these asserted failures, no submission was addressed to them and we are unable to see where the asserted failure occurred and, more importantly, if it did, how it speaks to injustice. We do not propose to consider these particulars further.
viii)Failed to accede to a request made to her that the appellant have access to the notes made by the author of the Family Reports prior to his decision to cross examine that author;
On 13 October 2010 while conducting the pre-hearing mention, the father mentioned to the judge that he would like to have access to the “report writer’s notes” before the hearing. Her Honour said:
HER HONOUR: Well, if you want her notes, then you will need to issue a subpoena and I will leave that with you. I won’t make that order. The notes by the family consultant might be something that she has available to her when she is giving her evidence. Whether you actually receive any assistance by you having access to them or not is, in almost every respect, highly questionable. She may have her notes and you may ask her to refer to her notes when you are asking her something in particular, but I will not make an order that her notes be provided to you prior to the hearing. You can raise that as an issue at the outset of the hearing, if you like, if you haven’t issued a subpoena for her notes.
(Transcript dated 13 October 2010, page 27 line 1)
The father suggested to her Honour that the Family Court Guidelines suggest that she needed to make an order for him to see the notes. Her Honour said:
HER HONOUR: Yes, I’m not going to make that order at this stage. You can ask again on the morning of the trial and you can ask – I don’t even know what Ms [F]’s process is with respect to the making of notes and whether there is something which is capable of being captured by you, but I’m not going to make an order along those lines at this stage. You can raise it again with me on the day of the trial.
(Transcript dated 13 October 2010, page 27 line 26)
On the first day of the hearing, the father again raised the question of the report writer’s notes. Her Honour said:
HER HONOUR: No. You can ask her during her cross-examination. There is nothing which has caused me to form the view at this point in time that her notes will be of any assistance, so I’m not requiring her to produce them. You can ask her when she’s being cross-examined and you can ask her to refer to her notes if you think there’s something in particular, but no, I’m not going to clutter up the court record or my time with requiring her to do that at this stage.
MR [DOHERTY]: Your Honour, would it be open to me during the cross-examination of Ms [F] to again ask that I see the notes at specific---
HER HONOUR: No.
MR [DOHERTY]: ---for specific things?
HER HONOUR: No, no, no. What you can do is you can ask her whether her notes help her with something in particular, but I can’t see at this point in time that there’s any compulsion on Ms [F] to show you her notes. You don’t have evidence before me as to how she takes notes, as to what she does with notes. Until you get that evidence out of Ms [F], there’s no point in you asking for her notes.
MR [DOHERTY]: She’s actually put that in her report, your Honour. She claims to take notes by hand contemporaneously.
HER HONOUR: All right. And there’s nothing to say that those notes will be of any assistance to you or be legible or make any sense to anybody other than the note taker themselves. You have a comprehensive report and if there’s something within the report that you want her to refer to her notes, you may ask her about that then. That’s my final ruling. Move on to to something else.
(Transcript dated 4 November 2010, page 11 line 25 to page 12 line 5)
Quite why her Honour was not prepared to allow the father access to the report writer’s notes is not clear. She was incorrect. The father, as indeed the mother’s counsel submitted, had (subject to any claims not evident or suggested in these proceedings) an indisputable right to have access to the notes on which the report was based, and indeed he was entitled to have that access at a time before the witness came to be cross examined.
In Weston & Laurent [2013] FamCAFC 34 the Full Court considered a matter in which a Federal Magistrate refused to allow a party access to the notes of a report writer unless related to a specific issue raised in examination. The Full Court said:
56.It seems that her Honour took the view that until an issue arose in cross-examination about which there was a dispute, the notes could not be inspected. This is the subject of the second complaint by the mother, and again we have to disagree with the approach of the Federal Magistrate. It is not uncommon for the notes of an expert witness to be inspected prior to cross-examination, and there is no section of the Evidence Act 1995 (Cth) or Rule of Court, or principle emanating from case law which only permits inspection of notes when disputed issues arise in cross-examination, and then only as to that issue. The mother’s counsel relies on a decision of the Full Court of the Supreme Court of Victoria in R v Alexander and Taylor [1975] VR 741, where at 749-750 the court sets out some of the reasons for permitting inspection of the material on which an expert relies before cross-examination of that expert takes place. The court said:
… in many cases it would be impossible to properly assess the value of a witness’s evidence, or test it in cross-examination, without reference to the original record from which the witness says that he speaks. For example, the record itself could have been dishonestly fabricated, or in his oral evidence the witness could have accidentally or deliberately misstated its contents, and an opposite party ought to have full opportunity of investigating these possibilities, if that party so desires; further, any alleged copy of the original record could prove not to be an accurate copy.
In our view, the father’s request made on 13 October 2010 and again on
4 November 2010 was entirely reasonable and her Honour was plainly wrong to refuse it. That, however, is not the conclusion of the issue.
Ms F was cross examined by the father. Before she commenced her evidence, the trial judge asked her whether she had access to her notes, which she did. We observe that Ms F gave her evidence by telephone rather than being present in the court room. Although the father did not have access to her notes, he asked questions of Ms F about her reports and about the other reports before the court. During his questioning of her, at no point did he ask her to refer to her notes.
The father’s written submissions challenge Ms F’s evidence in that it is asserted that she relied on the mother’s account of events and that she did not take into account any other source of information. The submissions challenge her conclusions based on the information given to her. The father challenges her where her opinion does not accord with his submission as to the course of events (Submissions filed by the father, dated 21 April 2011). The submissions further challenge her expertise. However, no question asked of Ms F suggests that her opinions which it contains are based on facts or information recorded wrongly in the report and that any such error would be exposed by reference to Ms F notes. It was not suggested to Ms F, to her Honour and nor is it suggested before us that anything contained in the notes might alter in any way any opinion expressed by Ms F or any finding by her Honour referenced to any such opinion.
In this case there was no basis advanced either to her Honour or before us to demonstrate that an injustice was worked on the father because he was unable to see Ms F’s notes.
The father was unable to point to any injustice or detriment that flowed from her Honour’s erroneous conclusions about his right to see the notes. We are conscious that, in effect, the father is required to prove a negative, not having seen the notes, however we are unable to infer that such injustice did occur.
There is no foundation in this asserted error.
ix) Failed to allow the cross examination by the appellant of Dr [L] despite reasonable efforts made by the appellant to have Dr [L] present for such purpose.
In relation to particular (ix) it is asserted in the written submission that
her Honour “forbade the Appellant to cross-examine Dr [L]”. That is incorrect.
On 17 February 2010 the judge made an order that in the event that either party wished to cross examine the report writer at the final hearing that party was to give notice to the author no later than 4pm on 4 May 2010. On
13 October 2010 during an appearance in the matter, her Honour enquired whether the father had advised the author of the family report if she was required for cross examination. The father indicated that he had and he had also informed the psychiatrist but had not informed any of them of the hearing date but said that he would do that the next day.
(Transcript dated 13 October 2010, page 21 line 20).
As we have indicated, the hearing before her Honour commenced on
4 November 2010. In the preliminary stages of the trial when her Honour was discussing with the father and the mother’s counsel the progress of the trial, she asked the father whether he had required Dr L for cross examination. The father indicated that he had and had also required Ms F. The father said that he had not enquired of Dr L as to his availability during the hearing days. Her Honour told the father that he needed to make those enquiries when the matter was adjourned.
(Transcript dated 4 November 2010, page 10 line 32)
Her Honour then said to the father:
HER HONOUR: All right. That’s not going to be my job, Mr [Doherty]. If you can’t get Dr [L] , then his affidavit will go in as it is. All right. So if you can’t cause him to be available by telephone at some point in time, then his material simply goes in. All right. We’ll adjourn for 10 or 15 minutes while you take those instructions and you call Dr [L]’s rooms…
(Transcript dated 4 November 2010, page 11 line 1)
The next day, 5 November 2010, the hearing continued. At the outset, the
trial judge indicated that the hearing would not complete that day. During
her Honour’s discussion about the order of witnesses, the father indicated that
Dr L was only available that morning until 12.30. Her Honour indicated a preference to hear the evidence of the parties before she heard from the psychiatrist.
(Transcript dated 4 November 2010, page 86 line 35 to page 87 line 7).
On 4 April 2011 immediately before the matter was adjourned part-heard to
5 April 2011, her Honour asked the mother’s counsel about the order of witnesses for the next day. Counsel told her Honour that Ms F was available to give evidence the following afternoon but she said that she had not been able to contact Dr L. Her Honour said:
HER HONOUR: Well, his affidavits go in unchallenged then if he is not available.
(Transcript dated 4 April 2011, page 75 line 27)The father said that he believed that Dr L was available by telephone on the following day. Her Honour invited the father to tell the mother’s counsel what arrangements he had made with Dr L.
(Transcript dated 4 April 2011, page 75 line 29-32)
On 5 November 2010 her Honour enquired of the father as to the availability of Dr L. The father said that “he believed he is available this afternoon by telephone”. Her Honour then said:
HER HONOUR: All right. If you’re wanting to have him available you need to make arrangements. I’m not having my associate calling Dr [L]’s [sic] rooms to find that I’m then - that he’s not available, that there’s some kerfuffle. So he’s either available or he’s not. I will stand your trial down now and I will take you at about quarter past one with Ms [F].
(Transcript dated 5 April 2011, page 108 line 31)
Her Honour invited the father to use the adjournment to make arrangements for Dr L, and suggested that Dr L could be heard at 2.30.
After the adjournment, her Honour enquired as to Dr L’s availability and the father told her that he was unavailable that afternoon.
(Transcript dated 5 November 2011, page 123 line 26)
Finally, at the conclusion of the evidence of Ms F, her Honour said:
HER HONOUR: Now, Mr [Doherty], you have said that Dr [L] wasn’t available. My trial directions, made a long time ago, provided for the event that a report writer wasn’t available, that their report would go in. so
Dr [L’s] two reports are before me….(Transcript dated 5 April 2011, page 133 line 13-16)
Her Honour then suggested that the parties make written submissions and the trial concluded.
Dr L is a psychiatrist. Although no order was made for his appointment as the single expert in the case, it is clear and, it seems uncontentious, that such was his role. To that end, he received instructions to prepare a report after interviewing both parties and each party sent him documents that he or she wished him to consider as part of the information available to him (we observe that Mr B’s report was sent to Dr L for his consideration). He conducted interviews with both parties. Dr L’s report sets out extracts of his interviews with both parties. In particular he mentions the father’s view that the mother has a Borderline Personality Disorder, and concluded that there was no evidence of any mental disorder or illness in the mother.
In his written submissions to the trial judge, filed 21 April 2011, at paragraph 111 the father makes submissions about Dr L’s opinion. He notes that
Dr L’s opinion is premised on the account of the mother given in consultation being truthful. After quoting from the opinion of a doctor reported in “Psychiatric News January 3 2003” in which that doctor observed that “pathological lying is not uncommon in patients with Borderline Personality Disorder” the father submits that little purpose is served in requiring a truthful account from someone with a suspected disorder characterised by pathological lying.
The submissions proceed to set out what the father regarded as lies told by the mother to Dr L. For example, in paragraph 115, the father notes that
Dr L records the mother as having no significant medical history when, the father said, she had an appendectomy in 2004.
After providing further examples of what he terms untruthful accounts by the mother to Dr L, the father submitted:
121. While these examples are by n (sic) means exhaustive, and most of the information is unable to be verified either way, it is clear that [the mother] did not provide Dr [L] with a truthful account. The only reason that [the mother] had to lie to Dr [L] was because she feared that had she told him the truth, he would have been able to diagnose a mental disorder.
The submissions further criticise Dr L’s methodology, the time he took in interview and his failure to consult with other people or seek corroboration from other sources.
It was submitted for the father that the trial judge ought to have extended the hearing to enable Dr L to be called or make some other arrangement that would have enabled Dr L’s evidence to be taken.
We first observe that the father made no such suggestion to her Honour, but, we accept he was appearing for himself. However, he was well aware that he was responsible for making arrangements for the evidence of Dr L to be taken. So much is apparent from the extracts of the transcript of the proceedings to which we have already referred. We also note that during the trial the father had been keeping the judge informed of Dr L’s availability.
Section 69ZN of the Family Law Act 1975 (Cth) (“the act”) imposes a number of mandatory obligations upon the Court in exercising powers in child-related proceedings. Included among them is the specific mandatory instruction to “actively direct, control and manage the conduct of the proceedings’
(s 69ZN(4)) and to do so within the context of a mandatory instruction to conduct proceedings “… without undue delay” and “with as little formality and legal technicality and form as possible”. It can be expected that experienced trial judges will have these mandatory conditions in mind and, in any event, the passages of the transcript earlier quoted, and the whole of the transcript more broadly, indicate that these matters were clearly in her Honour’s mind.
Potently the father does not point to any matter or point on which he wished to ask Dr L questions or even the subject matter of any questions he wished to ask and nor did he argue that the failure to afford him the opportunity to ask those questions operated to his disadvantage. At its highest, the argument on this ground was that the father was denied the opportunity to ask Dr L questions.
We are prepared to assume for the purpose of considering this ground of appeal that the father would have challenged Dr L’s opinion that the mother did not have a Borderline Personality Disorder.
The trial was not a forum in which the father was entitled to ask the witnesses questions of any nature; he was obliged to ask relevant questions. In this case, neither the father to her Honour nor his counsel in the appeal set out the matters which, if he had had the opportunity, he would have asked of Dr L. In particular, the father points to no evidence that he would have put to Dr L had he the opportunity, save for his own assertions (based it seems on his own opinion or “diagnosis”). That in our view is a significant matter.
We are not persuaded that being unable to cross examine Dr L in the circumstances of this case was a failure by her Honour to afford the father procedural fairness.
In any event, even if it be thought that it was a denial of procedural fairness, we would otherwise not uphold this ground.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 the plurality of the High Court said at 145-6:
On the principle issue in the case, the judgment of the Full Court reads:
The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker LJJ) in Jones v National Coal Board [1957] 2 QB 55 at 67, in these terms: “There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”
That general principle is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. True it is that an appeal to the Full Court from a judgment or order of a judge is by way of rehearing and that on hearing such an appeal the Full Court has all the powers and duties of the primary judge, including the power to draw inferences of fact: Supreme Court Rules O 58 rr 6 and 14. However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution. It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact. And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.
Their Honours concluded at page 147:
… All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
We are satisfied that had the father the opportunity to ask questions of
Dr L challenging his opinion that the wife did not have a mental illness, it would not have produced any other outcome in the trial.
It follows that none of the grounds of appeal has been made out and the appeal will be dismissed.
Costs
At the conclusion of the hearing we sought submissions from the parties on the question of costs to save them the cost and inconvenience of making further submissions once our decision was delivered.
The father submitted that if the appeal failed he should not pay costs because, while he has an income, it is small and he has the additional financial burden of the cost of travel to spend time with the child.
The mother submitted that in the event the appeal failed she would seek her costs.
Although the father’s income is not considerable, the appeal has been wholly unsuccessful. In those circumstances we are of the view that he should pay the mother’s costs of and incidental to the appeal.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy & Tree JJ) delivered on 19 February 2014.
Associate:
Date: 19 February 2014
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