Dorian & Geary
[2023] FedCFamC1A 58
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dorian & Geary [2023] FedCFamC1A 58
Appeal from: Dorian & Geary [2022] FedCFamC2F 1597 Appeal number(s): NAA 281 of 2022 File number(s): TVC 1320 of 2020 Judgment of: CHRISTIE J Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – APPEAL – where the trial judge made final parenting orders on 21 November 2022 – where the appellant asserts that the primary judge failed to accord procedural fairness to the appellant, the product of which was that there was a miscarriage of justice – where the appellant asserts particulars of the primary judge’s conduct amounted to procedural unfairness – where the ground is not made out – where the appellant asserts that the primary judge fell into error in determining the appellant’s time be supervised – where the primary judge had regard to the expert evidence in making that determination as he was entitled to do – where the appellant asserts that the primary judge failed to provide adequate reasons for indefinite supervised time and the primary judge failed to provide any or any adequate reasons why a six month moratorium on the appellant’s time was granted – where the primary judge gave adequate reasons and had regard to the children’s best interests in doing so – where the appellant asserts the primary judge erred in failing to apply ss 102NA and 102NB of the Family Law Act 1975 (Cth) – where those sections are not engaged on the facts – where the appellant has not made her case out – appeal dismissed – appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 68, 69ZN, 69ZX 102NA, 102NB, Div 12A, Pt VII.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 8.13, Sch 3.
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148,
Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48,
Johnson and Johnson (1997) FLC 92-764; [1997] FamCA 32
Lindfield and Romano (2022) 65 Fam LR 233; [2022] FedCFamC1A 81,
Malloy & Stopford Malloy (No 3) [2020] FamCA 838
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17,
Re F: Litigants in PersonGuidelines (2001) FLC 93-072; [2001] FamCA 348
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570
Number of paragraphs: 113 Date of hearing: 17 April 2023 Place: Sydney Counsel for the Appellant: Mr Pack Solicitor for the Appellant: Cleon Legal & Mediation Services Counsel for the Respondent: Mr Fellows Solicitor for the Respondent: Legalsense NQ Lawyers Counsel for the Independent Children's Lawyer: Mr Baston Solicitor for the Independent Children's Lawyer: Murray & Lyons Solicitors ORDERS
NAA 281 of 2022
TVC 1320 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: DORIAN
Appellant
AND: GEARY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
5 May 2023
THE COURT ORDERS THAT:
1.Appeal NAA 281 of 2022 is dismissed.
2.The appellant pay the respondent’s costs in the sum of $15,236.54 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dorian & Geary has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal from final parenting orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 21 November 2022.
The effect of the final orders made by the primary judge was to place the children, X and Y, nearly 11 and nearly eight years of age at the time of order, in the full time care of the respondent and suspend time with the appellant for six months. Thereafter, the appellant was to be restricted to supervised time facilitated by two specific service providers. This was against a background where the children had not spent time with the respondent since 29 October 2020.
The appellant’s primary contention is that the decision of the primary judge was attended by procedural unfairness such that the resulting orders are a miscarriage of justice. Otherwise the appellant argued that the decision was against the weight of evidence and/or unsupported by adequate reasons. Finally, the appellant argued the primary judge had misapplied the law. For the reasons which follow I am not persuaded that the appellant has demonstrated error and the appeal will be dismissed.
BACKGROUND
The appellant and respondent lived together between November 2009 and April 2015. The two children, the subject of the parenting orders, were born in 2012 and 2014.
On 21 September 2017 final orders were made by consent. Those orders provided for equal shared parental responsibility and the children to live with both parents, graduating to a “week about” arrangement in 2020.
On 13 September 2019 a “Temporary Protection Order” was made on the application of the appellant. No final order was made and the parties entered into undertakings.
On 21 February 2020 the parties entered into a Parenting Plan which had the effect of modifying the final orders to include a clause that prohibited physical discipline of the children.
On 24 September 2020 the appellant filed an Initiating Application seeking discharge of the previous final orders, an order for equal shared parental responsibility (except as regards medical decisions) and suspension of the respondent’s time pending a report.
On 10 October 2020 the respondent filed his Response to Initiating Application. He did not seek to disrupt the equal time arrangement but sought specific orders relating to the children’s health and education.
The appellant filed a Notice of Risk on 24 September 2020 and on 10 October 2020 the respondent did same.
THE TRIAL
The appellant conducted the trial herself without the assistance of a lawyer.
At commencement of the trial the appellant, through her Amended Initiating Application filed 8 August 2022, sought an order for sole parental responsibility and orders that the children live with her and spend time with the respondent according to their wishes. The respondent, through his Amended Response filed 8 August 2022, also sought an order for sole parental responsibility and an order that the children live with him and their time with the appellant be suspended – but gradually return to a week about arrangement.
The independent children’s lawyer’s position at the commencement of the trial was that the children should continue to live with the appellant. The primary basis for this position was said to be the likelihood that the child, X, would be resistant to a change of residence. At the conclusion of the trial the independent children’s lawyer (“the ICL”) sought an order that the children live with the respondent and spend supervised time with the appellant. The ICL’s changed position at the conclusion of the trial was reflective of the specific evidence of the therapist as to whether X would tolerate such a change of residence arrangements.
To the extent that the primary judge was dealing with an assessment of potential risks to the children in the household of either parent, it would appear that he was balancing the risk to the children of a compromised or non-existent relationship with the respondent if they remained in the care of the appellant, against the appellant’s assertion that the respondent posed a risk to the children.
The factors said by the appellant to constitute risk were dealt with in the Notice of Risk which she filed on 24 September 2020:
1.The child [X] alleges that the [respondent] threatened him with a knife during an argument, the child hid in the bedroom during the argument and the [respondent] used the knife to open the door to the room the child was hiding in.
2.The matter was reported to police and a temporary Protection Order was made at the Magistrates Court at [Town B] on 13 September 2019 and the matter is proceeding to hearing.
3.The children [X and Y] are diagnosed with Autism Spectrum Disorder (Level 2) and require therapy with a Psychologist, Occupational Therapist and other therapies as required.
4.The children have been attending a Psychologist for a period of approximately 12 months or more. The [respondent] has been sending emails and recently made a complaint to the health Ombudsman against the Psychologist in relation to the diagnosis of the children with Autism.
5.As a result of the [respondent’s] emails to and complaint about the Psychologist, the Psychologist has had to withdraw from treating the children which leaves the children without therapy as prescribed by their [specialist].
6.The Psychologist withdrew from treating the children on or around 19 June 2020.
The specific events that were said to demonstrate risk were described in the evidence and the decision of the primary judge as “the knife incident”, “the camping incident” and “the cinema incident”.
The factors said to constitute risk to the children in the appellant’s care were an enmeshed relationship with the children, in particular X, and the appellant’s mental health to the extent that it impacted on her capacity to facilitate the children’s relationship with the respondent. There was also expert evidence about the impact of an enmeshed relationship on the children’s psychological well-being.
THE APPEAL
Effectively, the appellant pursues four separate grounds of appeal:
(a)Ground 1: miscarriage of justice as particularised;
(b)Ground 2: decision was against the weight of evidence;
(c)Ground 3: inadequate reasons as particularised;
(d)Ground 4: error in application of ss 102NA and 102NB of the Family Law Act 1975 (Cth) (“the Act”).
It is necessary to deal with the allegation that there has been a miscarriage of justice first since, if that contention is made out, then it follows that the appeal must succeed.
Ground 1: The primary judge failed to accord the appellant procedural fairness and this resulted in an unfair trial and miscarriage of justice
(a) The primary judge made pejorative comments, remarks and angry outbursts directed at the appellant
It is not plain that the primary judge did, in fact, make pejorative comments or direct angry outbursts at the appellant.
The submissions refer to three specific interchanges. It is useful to deal with the first two together.
The first example relied upon to support the submission is contained in the cross-examination of the appellant by counsel for the ICL:
HIS HONOUR: Even if the – and I appreciate what you say in relation to the – to [X] pushing back in some part of the discussion, and I don’t think – this is my view – I don’t think that that removes your responsibility as a parent to reassure the child about the other party. But even if [X] pushes back, then a DV application, a child safety complaint, a police complaint? I mean, talk about molehills and mountains?
[APPELLANT]: I – I – I understand that. My sister would have the same criticisms. The – the difficulty is that this wasn’t the first – this wasn’t the first thing that ever happened, nor was it the basis of this application either.
(Transcript of 5 September 2022, p.89, lines 22-29)
The second example is of a similar nature and occurs in the same cross-examination and shortly after the first:
HIS HONOUR: Sorry. Then, why did you go to the police? This is extraordinary?
[APPELLANT]: It’s – my biggest -
HIS HONOUR: No wonder the children have a fear of [the respondent], frankly?
[APPELLANT]: I – I
HIS HONOUR: when everything is so reacted to and escalated up to these authorities, which at one level – if [X] is behaving the way he is now, apparently – it’s reinforcing to him, in a sense, he’s running the show, at the very least, whilst at the same time reinforcing to both of them the danger of the [respondent]. I mean, really? You know, we’re talking about just two minor incidents – and let’s be very frank – minor incidents that resulted in police complaints, child safety complaints. I mean, as I said before, talk about molehills and mountains. Go on.
(Transcript of 5 September 2022, p.91, lines 6-17)
The appellant highlighted the expression “talk about molehills and mountains” presumably as indicative of a pejorative comment. It is important to understand the primary judge’s reference in the context of the evidence to which it referred.
As set out above, there were three incidents which were the subject of evidence and cross-examination and each related to an interaction between X and the respondent. Dealing with them in chronological order: in September 2019 the respondent and X had a disagreement when the respondent proposed that X miss his Saturday sport to facilitate a family excursion. X responded by locking himself in his bedroom. The respondent used a butter knife to unlock the bedroom door. Upon return to her home, the appellant reported X told her he was afraid. At the hearing before the primary judge the appellant agreed that the respondent posed no physical risk to X either at that time or subsequently. However, the appellant’s response to X reporting to her that he was afraid was to “seek advice from the Police”.
The second incident occurred in February 2020. The respondent says it was necessary to discipline X on a visit to the cinema because he had his sister in a headlock. The appellant says that X reported subsequently that the respondent had grabbed his arm with force. The appellant contacted both the Police and Department of Child Safety Youth and Women.
The third incident occurred in September 2020. The children were camping with the respondent and his partner during the school holidays. The appellant reported them missing and organised the police to locate them and perform a welfare check. During the holiday, X reacted badly to dropping the bread he was toasting, kicking camp chairs. The respondent told him to have time out in the tent. X later reported to the appellant that the respondent had thrown him into the tent.
It was the nature of these incidents and the appellant’s response to them that led to the primary judge making the remark about “mountains and molehills”. However, the expression itself was not the judge’s own. It is necessary to appreciate that the primary judge had heard the appellant being cross-examined by counsel for the respondent earlier the same day about her counselling records between herself and Ms A, the mother’s psychologist. Counsel for the respondent put to the appellant that her counsellor had recorded the following statement:
The [appellant] reported that the court report writer told her to stop being dramatic, stop making mountains out of molehills and to calm down.
(Transcript of 5 September 2022, p.8, lines 41-42)
The counselling record itself was in evidence and marked as exhibit 7 in the proceedings. The record of the 20 October 2021 session with Ms A states “M reported that the court report writer told her to stop being dramatic, stop making mountains out of molehills and to calm down”.
It is plain that the cross-examiner fairly put the content of the note to the appellant. The appellant’s own evidence acknowledged that this was an opinion which had also been expressed by her sister.
The third of the interventions highlighted by the appellant’s submissions is the judge’s comments about the appellant’s exercise of parental responsibility in light of the 2017 consent orders which provided for equal shared parental responsibility.
The interchange is recorded in the transcript as follows:
HIS HONOUR: I was about to get around to that. The [appellant] engaging this [specialist] without consulting the [respondent] is a clear breach of the 21 September 2017 order. And I’m going to make an order now, except for emergencies, no parent shall arrange for the children to consult with any medical or healthcare practitioner without the prior written consent of the other parent.
[APPELLANT]: Your Honour - - -
HIS HONOUR: That’s it.
[APPELLANT]: Your Honour, if you just give me a second, I have it in my bundle. I opened this line of discussion with [the respondent] in November of 2019, and we were back and forth about engaging a [specialist]. And he couldn’t – he wouldn’t agree.
HIS HONOUR: It is - - -
[APPELLANT]: I have it in front of me. I just – I’m very - - -
HIS HONOUR: It is unbelievable what these children have been put through. It is unbelievable what these children have been put through.
[APPELLANT]: Please. I just can’t put my hands on the documents in a quick manner.
HIS HONOUR: That order applies. I’ve just made it.
(Transcript of 6 September 2022, pp. 153-153, lines 44-46 and lines 1-23)
From context it would appear that the appellant’s complaint is that she was not given the opportunity to explain why it was that she acted unilaterally (in the face of the requirement that the parties have equal shared parental responsibility).
However, it is plain that the appellant’s position – namely that the respondent would not engage with her requests – was a matter which the appellant was able to convey to the Court.
The appellant submits that the primary judge’s interventions were indicative of prejudgment, such as would render the resulting orders unfair.
It is necessary to review the examples provided by the appellant in the context of the evidence and the trial as a whole. The primary judge was not obliged to sit inscrutable as a sphinx: Johnson & Johnson (2000) 201 CLR 488 at [13]. His interventions demonstrate his developing understanding of the evidence as it was being presented as opposed to being indicative of bias or prejudgment.
Finally, the appellant points to the judge’s apology for “outbursts” as supportive of the position that the conduct of the trial was unfair to the appellant.
This is what the primary judge said on the matter:
HIS HONOUR: All right. Well, I’m inclined to have something to eat. I should also say, I apologise for my outbursts over the last day or two. I have, as people probably noticed me dabbing my ear, I have an ear infection which is really annoying. Frankly, that’s not a good excuse. I appreciate that. I can hear you. It’s not – I’m not sitting up here wondering what’s happening. But anyway, I record that I should apologise for my outbursts and I will continue to dab my ear. What, minutes, something like - - -
(Transcript of 7 September 2022, p.211, lines 13-19)
If the outbursts are as set out above then they do not amount to unfairness to the appellant. If there are other outbursts contained in the evidence I was not taken to them. It is plain his Honour felt he had conducted himself in a manner which required that he apologise but is far from clear what the apology was directed to specifically. If a judge is frustrated by the evidence and this is (perhaps) compounded by an ear ache, more will be required to demonstrate that the process itself has miscarried. This ground is not made out.
(b) The primary judge failed to accord the appellant procedural fairness and this resulted in an unfair trial and miscarriage of justice - The primary judge formed a preliminary view, and closed his mind to further persuasion and the full case being advanced by the appellant.
It is necessary to examine, with particularity, which comments by the primary judge are said to have demonstrated prejudgment. In the appellant’s written submissions counsel identified two passages from within the transcript which were said to demonstrate a closed mind indicative of prejudgment.
In Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507, Gleeson CJ and Gummow J, with whom Hayne J agreed, said:
71.… Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
72.… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
It is important to understand that the primary judge has an appreciation of the content of the affidavit material and the history contained therein at the commencement of the trial.
The appellant’s case, as articulated before the primary judge, was that the respondent’s initial failure to accept the children’s Autism Spectrum Disorder (“ASD”) diagnoses, and his failure to parent in a manner which appreciated the children’s diagnoses, placed them at risk. The primary risk she asserted was of psychological harm flowing from insufficiently attuned parenting.
His Honour seems to have understood this position, but sought to highlight for the appellant, as a litigant in person, that whatever may have been the catalyst for her application had been overtaken by the very significant change of circumstances – namely the breakdown of the children’s relationship with the respondent – the primary judge acknowledged the mother’s original concerns but could not ignore what had occurred since that time. The primary judge raised the issues as follows:
HIS HONOUR: …there was a significant dispute about the diagnosis for the children, about whether the father considered he had been given notice about the potential impact of labelling children, if I could put it that way, but I think to a great extent that’s really past history now.
(Transcript of 8 September 2021, p. 262, lines 14-18).
The first example that the appellant cites as indicative of prejudgment is contained in the transcript as set out above at [32].
The next example arises from the transcript on the second day of the trial when the appellant was cross-examining the respondent about “the cinema incident”. In the course of the cross-examination the appellant said: “All right. And so okay. That the rest of it plays out. Again, my concern is not – I don’t consider this harsh discipline by any means at all.”
The appellant’s comment caused the respondent’s counsel to weigh in and reply: “Well then, if that’s the case, your Honour, why are we making another mountain out of a molehill?”
The interchange between the bar table and the bench continued against that background with the primary judge remarking:
HIS HONOUR: Well, it’s – frankly, it’s not a nothing, is it? Because it has damaged, unbelievably, the relationship between the child and the [respondent]. It’s not a nothing from that point of view. But on any objective view, it’s just not worth wasting our breath over, frankly.
(Transcript of 6 September 2022, p. 142, lines 15-18)
In light of the appellant’s concession that the respondent’s conduct at the cinema did not even constitute harsh discipline, the comments of the primary judge are not significantly out of step with the appellant’s own concession.
It follows that those remarks cannot support a finding that the primary judge had predetermined the case or had closed his mind to the evidence and submissions which may follow. Accordingly this ground must fail.
(c) The primary judge failed to accord the appellant procedural fairness and this resulted in an unfair trial and miscarriage of justice - The primary judge’s abrupt interventions and remarks to the appellant during the appellant’s cross examination of the Respondent denied the appellant procedural fairness.
This ground repeats the same complaint that the primary judge’s intervention, discussed above, was a denial of procedural fairness. For the reasons already articulated I do not accept that submission.
The appellant has not established that the primary judge required the appellant to cease cross-examination. The appellant elected to cease cross-examination. This ground is not established.
(d) The primary judge failed to accord the appellant procedural fairness and this resulted in an unfair trial and miscarriage of justice - The primary judge failed to have regard to the appellant’s flustered demeanour and mental health during her cross examination of the respondent.
A non-legally trained person will, generally, find the process of undertaking a trial challenging. The primary judge was conscious of the disadvantages faced by the appellant at trial. The duty of the primary judge was to the integrity of the process.
The appellant must demonstrate (as opposed to assert) that she exhibited flustered demeanour and/or that her mental health had an impact on the conduct of her case such that the primary judge was obliged to intervene (and failed to intervene) in circumstances where there was a duty to intervene.
It is difficult to ascertain demeanour from transcript. For this reason the appellant asked the Court to find that the indications of compromised capacity to conduct the litigation are to be found in the appellant’s apologies to the Court and in the assertion that her cross-examination of the respondent ended abruptly.
I was taken to the transcript and the examples of the appellant saying sorry to the Court. In fact the first such example occurs on page two of the transcript:
HIS HONOUR: Thank you. Could I have appearances, please. I’m sorry.
[APPELLANT]: Good morning, your Honour. I am sorry. I’m [Ms Dorian]. I’m the applicant mother.
(Transcript of 5 September 2022, p.2, lines 1-4)
As is plain, the apology from the appellant seems to follow an apology from the primary judge. In fact, the transcript is replete with examples of the primary judge and counsel saying “sorry”.
The appellant points to examples during her cross-examination of the respondent but in fact the propensity to apologise was also a significant feature of her answers in cross-examination.
It does not automatically follow that use of the expression is synonymous with being flustered. It is necessary to examine the various examples which are relied upon by the appellant in pages 136 to 153 of the transcript to determine whether, in context, they support the conclusion that the appellant was flustered such that the judge was in error not to intervene.
It is plain that during the trial the appellant had a propensity to use the expression “sorry” – but often did so in a manner where the word functioned as a space filler and did not detract from her making the point she sought to make, for example:
[APPELLANT]: Thank you, your Honour. Excuse me. Sorry. That there was mention before of the video from the movie incident. Actually, I did suggest, because all the parties had received a copy of it. And the associate – someone had said I could – I would bring it on a USB stick. I actually do think it’s relevant and I would like for that to be tendered or whatever is the word into evidence.
And later in her cross-examination of the respondent:
[APPELLANT]: What was around her neck, sorry? His arm.
[RESPONDENT]: His arm or his hands?-His arm.
[APPELLANT]: His arm, sorry. I’m so sorry. Okay. But as in applying pressure to hurt her? She was uncomfortable and trying to get out of the headlock, yes.
(Transcript of 6 September 2022, p.136, lines 31-36)
Other examples relied upon demonstrate no more than courtesy on the part of the appellant:
[APPELLANT]: I think it’s two minutes or thereabouts.
HIS HONOUR: Fine, okay. No, that’s fine.
[APPELLANT]: You’re waiting for me, aren’t you? I’m so sorry.
[COUNSEL FOR ICL]: No, no. That’s all right. We’re looking for it as well.
(Transcript 6 September 2022, p.137, lines 5-11).
Other examples relied upon illustrate the primary judge giving the appellant guidance about what is permissible in parenting cases:
[APPELLANT]: No, that’s not – my difficulty, your Honour, is that [X’s] description – I can’t do this, can I, because I’m talking. I’m so sorry. I will just -
HIS HONOUR: No, you’re entitled to say -
[APPELLANT]: Am I? Right.
HIS HONOUR: In evidence about parenting matters, you are entitled to say what [X] told you.
(Transcript of 6 September 2022, p.141, lines 9-18)
Or explaining the objection process to the appellant:
HIS HONOUR: So what Mr Fellows is saying… is that because Ms [B] was, in a sense, using her psychological qualifications and experience to have these contact times happen, you couldn’t really just go over to what you might call a normal contact centre like Relationships Australia. I mean, it’s – I think I made some comment yesterday that I was a bit surprised that the father would give up that September 2021 possibility. And I’m well aware that his answer is correct. And that is that there was an order that didn’t require that. But even so, I’m still surprised, I must say. But the point is that, with the children knowing Ms [B], it was more than just, if we can’t use her, we use someone else. I think that’s the point Mr Fellows is making.
(Transcript of 6 September 2022, pp.145-146, lines 45-47 and lines 1-7)
Having reviewed all of the examples relied upon by the appellant of her apologising, I am not satisfied that they demonstrate that she was experiencing an incapacity that the Court needed to account for.
In Johnson and Johnson (1997) FLC 92-764 ( “Johnson and Johnson”) at [119] the Full Court cited dicta from the unreported decision of Studer v Konig as follows:
There can be little doubt that a litigant in person who has little or no legal training or experience is subject to a serious disadvantage in the effective conduct of legal proceedings, and in recognition of this fact, the Court takes such steps as are reasonably available to it to assist such a litigant to overcome or diminish that disadvantage.
But there are limits to how far the Court can properly go in providing such assistance, and the limits are reached when to go any further would either (a) compromise either the impartiality, or the appearance of impartiality, of the Court, or (b) result in procedural or substantive injustice to the other party.
In the same judgment, their Honours explain how the principles which emerge from the authorities must be seen in light of the Court’s duty to act in the best interests of children in proceedings under Part VII of the Act, at [121]:
Generally speaking, that obligation imposes upon the Court the necessity to conduct as full and complete an enquiry into the relevant issues as is possible, and not to be inhibited by restrictive procedures.
For the appellant to be successful it is necessary for her to demonstrate that she was not afforded procedural fairness because there were actions that the primary judge ought to have taken, in keeping with the guidelines outlined in Johnson and Johnson and refined in Re F: Litigants in PersonGuidelines (2001) FLC 93-072 at [253], but failed to take.
I do not accept that the evidence of the appellant’s mental health history or the expert evidence as to her current diagnosis mean that she could not conduct the litigation. The import of the expert evidence of Dr C, the single expert psychiatrist, was that the appellant “was assessed as having full capacity in respect of legal, financial and medical matters. [The appellant] has been assessed as having capacity to provide legal instruction and manage any instructions and orders she might receive”. I accept that this is not the same as capacity to conduct litigation on her own behalf but it certainly supports the conclusion that her functioning was not impaired by her diagnosis. Further, Dr C found that the appellant’s “mental health conditions [were] stable and well treated but the main concern would be enmeshment, that is unrelated to her psychiatric diagnosis”.
It follows that Ground (1)(d) is not established.
(e) the primary judge failed to consider the application of ss 102NA and 102NB to the circumstances of the case.
This ground deals with an asserted failure to consider the application of ss 102NA and 102NB of the Act and will be dealt with alongside Ground 4 which makes a similar complaint.
(f) The primary judge failed to accord the appellant procedural fairness and this resulted in an unfair trial and miscarriage of justice - The primary judge unreasonably exercised his discretion in refusing to allow the appellant to read and rely on her 2020 and 2021 Affidavits.
The appellant filed her primary affidavit on 15 August 2022 in her outline of case document she listed five earlier affidavits by her which she sought to read. The respondent’s counsel objected.
On 8 February 2022 the primary judge had made trial directions in chambers. Order 5 provided:
5. The evidence of the parties and their witnesses be by way of affidavit (unless leave has otherwise been granted by the court) AND:
(a) The applicant file and serve a consolidated trial affidavit and an affidavit by any witness upon which she intends to rely by 4.00pm on 15 August 2022;
(b) The respondent file and serve a consolidated trial affidavit and an affidavit by any witness upon which he intends to rely by 4.00pm on 22 August 2022;
(c) The Independent Children’s Lawyer file and serve any affidavits to be relied upon by them at the final hearing by 4.00pm on 29 August 2022; and
(d) Each party be permitted to rely upon only one affidavit by each of their witness/es unless the party has first obtained leave of the court.
Issues of case management are a matter for the primary judge guided by the Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Part VII, Division 1 of the Act sets out the principles which apply to the conduct of parenting matters. The Act provides under s 69ZN:
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
and later at s 69ZX:
(1) In giving effect to the principles in section 69ZN, the court may:
(a) give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders about how particular evidence is to be given; and
(d) if the court considers that expert evidence is required – give direction or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert’s evidence; and
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
The Rules provide for this at Part 8.13.
The primary judge indicated, appropriately, that he would listen to a specific application by the appellant in respect of the individual affidavits (as opposed to receipt of all six globally). The appellant did not make such an application.
The appellant has not demonstrated the manner in which the failure to permit her to adduce the excluded evidence impacted on the primary judge’s decision.
The appellant’s submissions do not highlight relevant evidence which would have potentially impacted on the outcome, which was excluded from consideration by the primary judge’s decision to reject prior affidavits.
(g): The primary judge failed to accord the appellant procedural fairness and this resulted in an unfair trial and miscarriage of justice - The appellant was not afforded a fair trial and procedural fairness by reason of the failure of the primary judge to manage the proceedings following the ICL’s changed position at the conclusion of the trial.
The ICL’s position did change at the conclusion of the evidence in so far as the final Minute of Orders Sought by the ICL reflected the cross-examination of, in particular, the expert witnesses. It may be inferred that the appellant’s submission about case management is really a complaint that the primary judge did not invite the appellant to seek an adjournment or invite the appellant to call further evidence.
Case management principles in parenting matters require a judicial officer, such as the primary judge in this case, to have squarely in mind the interests of the subject children (as well as those of the adult litigants).
The principles which apply in parenting matters are set out in Division 12A of Part VII of the Act.
Section 69ZN(7) of the Act states that “the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible”.
There is no suggestion that the appellant did not understand what was being sought by the ICL, nor could it be said that she failed to understand the evidence upon which it was based.
More fundamentally, the position of the ICL at the conclusion of the trial was not significantly out of step with the orders the respondent had been seeking since the commencement of the trial – in those circumstances the appellant was well on notice that this was a case she needed to meet. In those circumstances she has not established any procedural irregularity in the primary judge’s approach.
Having reviewed each of the matters set out in the Notice of Appeal under Ground 1, no one of them individually, nor combination of them collectively, has persuaded me that there was a miscarriage of justice and Ground 1 must fail.
Ground 2: The Court made an error of law and/or fact and against the weight of the evidence in determining that the supervised time order ought to be indefinite in nature, the determination of which was not justified in the circumstances of this case.
The evidence which supported supervised time was clear and cogent. The expert evidence indicated that the children needed to have time with the appellant during which they were not exposed to the type of discussions which may create a loyalty bind and jeopardise the repair of their relationship with the respondent.
At the conclusion of the evidence the primary judge was in a difficult position. The path which Ms B, counsellor, and Dr C proposed needed scaffolding if it was going to succeed and operate in the best interests of the children. That included:
(a)A moratorium on time between the children and the appellant;
(b)Family therapy of the children;
(c)A continuation of supportive therapy for the respondent; and
(d)Intense dialectical behaviour therapy for the appellant.
The primary judge was not in a position to assess whether or not each of those matters would be in place and if so whether the appellant’s therapy would successfully address her propensity to undermine the children’s relationship with the respondent.
The imposition of an unending order for supervision may appear harsh but it was not arbitrary.
It must also be remembered that the primary judge acknowledged that the judgment would not create a bar in the sense understood in Rice & Asplund (1979) FLC 90-725 and same was recorded in the final orders.
The rationale was plain – if the mother undertook the work necessary to address the issues then there was no reason why it would be inappropriate to revisit the orders (in particular the order limiting her time).
Ground 3: The primary judge failed to provide any, or any adequate, reasons for:
(a) why an indefinite supervised time order was necessary in the circumstances of the case.
For a challenge which is based on inadequacy of reasons to be successful the appellant must demonstrate that the primary judge’s synthesis of the evidence relevant to the topic does not support the orders which were made.
The primary judge’s reasons will be inadequate where it is not apparent how the decision was reached, that is upon what evidence the decision was reached and by which pathway the primary judge formed the conclusions which support the orders (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 cited with approval in Bennett and Bennett (1991) FLC 92-191). That is not the position here. The appellant has not demonstrated error, and this ground fails.
The primary judge accepted the evidence of Dr C as set out in the reasons at [283]:
… In my recommendation the Mother needs to have access under supervised visits for short periods of time only and professional supervised visits, to ensure that these children don’t get further damaged and psychologically impacted, until such time there are behavioural changes in her therapy, not just mere attendance.
In that opinion Dr C captured both the need for supervision and the need for change before supervision would be unnecessary. In the absence of evidence about when and if change would occur the indefinite nature of the order for supervision was the only order consistent with the evidence.
(b) The primary judge failed to provide any, or any adequate, reasons why a six month moratorium on the appellant spending any time with the children was necessary in the circumstances of the case.
It is necessary to turn to those paragraphs in the reasons of the primary judge which support the conclusion that a six month moratorium of the appellant spending time with the children was in their best interests.
At [248] the primary judge cites the evidence of Ms B. Ms B was asked about what techniques or methods might assist the children (and in particular X) to transition into the care of the respondent, if that is what the Court ultimately ordered. Ms M’s evidence as recorded by the primary judge was “[i]mplementing a significant change to the children being with the [respondent] might require 6 months not 3 months”.
This evidence appears in the transcript as follows:
MS B: When I think about family therapy and the complexities of booking appointments and doing all of those logistical things, three months is not a very long time, and if we’re looking for evidence of implementation I would probably be thinking that we would like to see those sorts of behaviours or changed behaviours for a period of at least six months.
(Transcript of 6 September 2022, p.167, lines 1-5)
In context it is plain that the discussion is about the respondent’s Minute of Order which provided for a three month “moratorium” during which the children did not spend time with the appellant.
Ms B’ further oral evidence on the topic of the moratorium was referenced in the primary judge’s reasons at [238]. His Honour accepted the evidence of Ms B to the effect that such a break was necessary if the children were to avoid the “loyalty bind” which may arise if they were seeing and spending time with the appellant while simultaneously adjusting to and rebuilding their relationship with the respondent.
Accordingly, Ground 3(b) must fail.
Ground 4: There was an error of law in the failure of the primary judge to apply Section 102NA and Section 102NB to the circumstances of the case.
The appellant’s complaint must be viewed in context. On 8 February 2022 the primary judge made trial directions which included the following notations:
…
C. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
D. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
E. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Section 102NA of the Act provides for mandatory protections for parties in certain cases, set out below:
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;
then the requirements of subsection (2) apply to the cross‑examination.
(2) Both of the following requirements apply to the cross‑examination:
(a)the examining party must not cross‑examine the witness party personally;
(b)the cross‑examination must be conducted by a legal practitioner acting on behalf of the examining party.
[Notes omitted.]
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i)the witness party; or
(ii)the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
I accept the submission that s 102NA(1)(a) and (b) were satisfied. The appellant accepts application of s 102NA of the Act was not a matter which was raised at the trial before the primary judge.
The appellant submits that s 102NA(1)(c)(iii) was engaged on the facts in this case. The parties’ final orders dated 21 September 2017 included a mutual non-denigration order expressed as follows:
7.1.1 The [appellant] and the [respondent] are restrained from and an injunction is issued:
7.1.1.1 …
7.1.1.2 denigrating the other parent to or in the presence of the Children, or permitting any other person to denigrate the other parent to, or in the presence of, the Children and the [appellant] and the [respondent] have a positive obligation to remove the children from the presence of a third person doing so;
Following the reasoning in Malloy & Stopford Malloy (No 3) [2020] FamCA 838, the appellant submits that Order 7.1.1.2 is a “personal protection order”.
I accept that the order in this matter was an order pursuant to s 68B of the Act. Section 68B provides a wide discretion which allows “the court [to] make such order or grant such injunction as it considers appropriate for the welfare of the child” - these include orders for the personal protection of children and adults. In Lindfield and Romano (2022) 65 Fam LR 233 the Court dealt with a similar argument about the content of a mutual non-denigration order under s 68 of the Act. There the Full Court said at [26]:
It was not controversial the March 2012 order could only have been made pursuant to the power conferred by s 68B of the Act. The injunction was made for the welfare of the children, and not for the protection of the children, nor for the protection of either of the parties. The order sought to be relied upon could not possibly be construed as including any degree of personal protection for a spouse who would not necessarily be present. It cannot automatically engage the prohibition on personal cross-examination, as contemplated by s 102NA(1)(c)(iii).
The injunction which appeared in the parties’ final consent orders was similarly made for the welfare of the children and not for the protection of either of the parties. The order sought to be relied upon could not possibly be construed as including any degree of personal protection for a spouse who would not necessarily be present. It cannot automatically engage the prohibition on personal cross-examination, as contemplated by s 102NA(1)(c)(iii) of the Act.
The appellant submitted that the drafting of the order contemplated that the parent may be present. I do not agree. The order as drafted referred to a parent denigrating the other parent directly in a conversation with the children or denigrating the other parent in a conversation overheard by the children but did not deal specifically with a situation where the other parent was present.
If s 102NA(1)(c)(iii) of the Act was not satisfied then the provisions of s 102NA were not mandatory and s 102NB had no operation. Consequently, there is no error demonstrated.
CONCLUSION
As set out above, I am not persuaded that the primary judge fell into error as asserted by the appellant’s grounds of appeal. Consequently, I will dismiss the appeal and now turn to the question of costs.
COSTS
Counsel for the appellant appropriately acknowledged that his client would have some difficulty in resisting an order for costs in circumstances where the appeal is dismissed.
The costs schedule filed by the respondent sought costs in the sum of $15,236.54 calculated in accordance with Schedule 3 of the Rules.
I will make an order in accordance with the sum set out in that schedule.
The ICL did not seek an order for costs.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 5 May 2023
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