ELLSWORTH & HUNNISETT - [2021] FamCAFC 6

FAMILY COURT OF AUSTRALIA

ELLSWORTH & HUNNISETT

[2021] FamCAFC 6

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders made by consent – Where the “correctness” or merits of orders made by consent cannot be challenged on appeal – Where the appeal does not raise any question of general principle – Where a number of grounds contain no sufficient particulars such that it is possible to discern the precise error or errors contended for – Whether the lawyers representing the father at the time the orders were made were incompetent – Where the father fails to establish anything about the asserted conduct of his lawyers as to sustain a characterisation of incompetence in their conduct – Appeal dismissed – Father to pay mother’s costs in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the father seeks to adduce a number of documents which he says support his position – Where the documents were either available at the time of trial or dated subsequent to the final orders – Where the nature and content of the further evidence could only be relevant to a challenge on appeal as to the merits of the orders – Where none of the criteria for the admission of further evidence on appeal identified in CDJ v VAJ (1998) 197 CLR 172 are met – Application dismissed.

Family Law Act 1975 (Cth) ss 93A, 94AAA(3), 94AAA(7), 117

Blaze v Grady (2015) 54 Fam LR 172; [2015] FamCA 1064
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
Darley & Darley [2016] FamCAFC 10
Ellsworth & Hunnisett (No. 2) [2019] FCCA 3867
Hunnisett & Ellsworth [2019] FCCA 1826
Melville & Melville (No. 3) (2020) FLC 93-985; [2020] FamCAFC 231
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Winship & Wrays (2019) FLC 92-928; [2019] FamCAFC 225

APPELLANT:

Mr Ellsworth

RESPONDENT:

Ms Hunnisett

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

2583

2014

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

4 February 2021

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

27 January 2021

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 August 2020

LOWER COURT MNC:

Transcript provided as reasons for judgment

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Sarah Cleeland Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The Application in an Appeal filed on 8 January 2021 be dismissed.
The appeal from the orders made on 31 August 2020 be dismissed.
The Independent Children’s Lawyer’s application for costs in respect of the appeal be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the fixed sum of $11,660.58 within six (6) months of the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ellsworth & Hunnisett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 64 of 2020
File Number: BRC 2583 of 2014

Mr Ellsworth

Appellant

And

Ms Hunnisett

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 31 August 2020 Mr Ellsworth (“the father”), Ms Hunnisett (“the mother”) and the Independent Children’s Lawyer (“the ICL”) appointed[1] to independently represent the interests of the child X (born in 2011) the subject of parenting proceedings[2] entered into final consent orders determining parenting proceedings.
[1]Pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”).
[2]Pursuant to Part VII of the Act.
Those orders provide, in summary, for the mother to have sole parental responsibility for all major long term decisions in relation to the child and for the child to live with the mother and spend no time and have no communication with the father. Notably, the consent orders also included injunctions restraining the father from communicating with the ICL; any counsel engaged by the ICL; and with the mother’s legal representatives.
Order 10 of the consent orders is in these terms:
10.Prior to the Family Court of Australia or Federal Circuit Court of Australia filing an Application for parenting Orders initiated by the Father, the Father is to attach to any Affidavit filed in support of parenting Orders:
a.A report from his treating psychiatrist that he has completed a rehabilitation course for polysubstance abuse, that the father has been compliant with recommendations for psychiatric care for a minimum period of 18 months from the date of these Orders and recommendations for the father’s future mental health care,
b.A minimum of four clear drug tests over a period of 18 months from the date of these Orders, at least four months apart each, each of the drug tests not showing the use of any illicit or illegal substances,
c.Evidence of an absence of proceedings or breaches of domestic or family violence in the intervening period between the making of these Orders and the Application filed by the Father.
The orders were made in the context of the father’s longstanding use and abuse of illegal drugs, his mental health issues and family violence perpetrated by the father against the mother.
By Notice of Appeal filed on 25 September 2020 the father appeals from all of the consent orders. By an Application in an Appeal filed on 8 January 2021 the father seeks to adduce further evidence on appeal pursuant to s 93A of the Act.
The father’s primary contention on appeal is that his legal representation at trial was incompetent and did not appropriately represent him, and the father further contends that the primary judge in making the consent orders did not consider his “parental rights [as] legislated”. The father seeks orders on appeal which would result in the child spending every second weekend and half school holidays with him, electronic communication in the week that the child does not spend time with him, that both parents attend upon a psychiatrist, restraints against the mother from “baiting/provoking” him and that neither parent denigrate or make derogatory remarks about the other.
The father’s appeal and his Application in an Appeal are opposed by each of the mother and the ICL.
The appellate jurisdiction of this Court in relation to this appeal is exercised by a single judge pursuant to s 94AAA(3) of the Act.
In my judgment, for the reasons which follow, this appeal ought be dismissed. As I am of the opinion that the appeal does not raise any question of general principle those reasons may be provided in short form.[3] The singular lack of merit in the appeal renders the conclusion that reasons in short form are all that is necessary.
[3]Pursuant to s 94AAA(7) of the Act.

Factual background

The father is aged 42 years. The mother is aged 46 years. Those parties had a brief relationship between June and July 2010 and they otherwise did not cohabit. The parties’ only child was born in April 2011 and is aged almost 10 years.
The father appears to have been mostly unemployed for the past 10 years. As at the hearing of this appeal he was in receipt of a disability support pension.
The mother is employed as in allied health earning about $75,000 gross per annum.
It appears that throughout her life the child has spent only sporadic time with the father and largely supervised by either the mother, the maternal grandmother or at a contact centre. From June 2012 the mother insisted that time be supervised owing to the father’s mental health and substance abuse issues.
Final parenting orders were first made by consent on 12 September 2017 which provided, in summary for:
a)The parents to have equal shared parental responsibility for the child;
b)The child to live with the mother;
c)The child to spend time with the father, initially to be supervised at a contact centre (one hour supervised, one hour unsupervised, then the final hour supervised) with a gradual progression such that by 30 March 2018, and on the condition that the father was living either with the paternal grandmother or in stable accommodation, the child would be spending time with the father from Friday afternoon to Sunday afternoon each alternate week;
d)Telephone time each Wednesday evening;
e)Block school holiday time; and
f)For the father to keep the mother informed with respect to his mental health treatment.
On 28 March 2018, prior to the commencement of unsupervised time pursuant to the 12 September 2017 orders, the mother filed an Initiating Application in the Federal Circuit Court of Australia (“the FCC”) seeking that the orders of 12 September 2017 be suspended and that the child spend time with the father to be supervised at a contact centre. By order made on 14 May 2018 Judge Spelleken suspended the orders of 12 September 2017. Her Honour instead ordered that the child spend supervised time with the father at a contact centre.
It appears that limited supervised time continued until 31 March 2019 when the child last spent time with the father. On 11 April 2019 the contact centre used by the parents terminated further visits given the suspicion that the father had been under the influence of drugs whilst spending time with the child. The child has not spent time with the father since.
On 28 June 2019 Judge Spelleken, after considering whether the child should spend time with the father between his anticipated completion of a drug rehabilitation program and the commencement of trial, suspended time altogether. Her Honour published reasons for that decision.[4] While noting that the father had “made a considerable effort throughout the course of these proceedings by seeking treatment and attending counselling sessions on several occasions” (at [17]), for the following reasons, her Honour was not persuaded that it would be in the child’s best interests to spend time with the father pending trial:
a)Notwithstanding orders which provided for the child to spend supervised time with the father, the time the child has spent with the father has been “sporadic at best” (at [20]);
b)The contact centre used by the parties was no longer willing to facilitate time given their suspicions that the father had been under the influence of drugs while spending time with the child (at [21]);
c)The father’s latest hair follicle test results (dated 9 April 2019) revealed that the father had used methamphetamine and cannabis in the three months prior to collection on 26 March 2019 (at [23]);
d)The father’s inconsistent attendance at a drug rehabilitation program (at [24]–[30]);
e)The child’s limited relationship with her father and the recommendation of the family report writer that the child spend no time with the father (at [32]);
f)The father’s lack of insight as to the child’s best interests (at [33]); and
g)That the father continued to attribute “any and all blame” for the child only spending supervised time with him to the mother and the mother’s solicitor (at [36]).
[4]Hunnisett & Ellsworth [2019] FCCA 1826.
On 29 August 2019 the father filed an Application in a Case seeking that time recommence. That application was before the primary judge on 14 November 2019, at which time her Honour delivered ex tempore reasons[5] and made orders again providing that the child spend no time with the father pending trial. The primary judge acknowledged that “[t]he father to his credit is engaging in processes to address a longstanding drug problem and he has attended … a number of courses” (at [19]).
[5]Ellsworth & Hunnisett (No. 2) [2019] FCCA 3867.
However, in dismissing the father’s application, her Honour further considered that:
a)The father did “not adduce any persuasive evidence that anything has materially changed … to warrant the Court reviewing [Judge Spelleken’s] decision to suspend his time” (at [24]);
b)The father’s communication with the mother and the mother’s solicitor, specifically the profane language used by him in such communication, was “very concerning” (at [26]) such that her Honour considered that the father owed both an apology (at [28]);
c)The father’s communication with the ICL mere days after completing two parenting orders programs suggested “that the father has learned nothing from his attendances at those courses” (at [27]);
d)Annexing communications which contain such profanities to his affidavit in support of the orders he sought “reinforc[ed] a concern about his level of insight” (at [33]);
e)Concern, if afforded supervised time or telephone time, whether the father would be able to contain his views in relation to the mother and others (at [38]);
f)The child’s views, recorded in the family report of Ms C dated 2 May 2019, that she is not comfortable around the father (at [39]); and
g)That the ICL did not support the father’s application (at [42]).
The primary judge also set out the steps that the father needed to take if he sought for the child to spend time with him in the following terms:
34.In short, the ball is in the father’s court. He cannot shift the blame to the mother, to [the mother’s solicitor] or the Court. A mature individual takes ownership for their mistakes and seeks to address them. The father has been doing some work, but he has to do more work, work necessary to prove that he has addressed all of the issues that have been identified that centre on him, not on the mother, not on [the mother’s solicitor], but on him.
35.They include his mental health, his illicit drug use, which has been a longstanding problem, his breaches of domestic violence orders and his understanding of the domestic violence dynamic, and importantly, his attitude to the mother who is on the evidence the most important person in [the child’s] life.
36.In that context, it would be foolish for the father to think that there is some quick fix to the problems that centre on him and have been longstanding, or that he will have any hope of having a positive relationship with [the child] until he changes his attitude or evidences a material change in his attitude to her mother, including the manner in which he communicates with her and speaks about her. Frustration is not an answer. One can disagree with someone without being disagreeable.
On 3 July 2020 the mother filed an Application in a Case seeking an injunction restraining the father from contacting her legal representatives via email. Orders were made on 13 July 2020 (in the father’s absence) granting the injunction sought by the mother. Those orders also appear in the final consent orders.
On 31 August 2020, on what was to be the first day of trial, counsel for the ICL indicated that the parties had agreed to final orders. These were handed up to the primary judge along with written submissions of the mother. Counsel for the father did not seek to add anything further. The primary judge, satisfied that the proposed orders were in the best interests of the child, made the orders sought. It is from those orders which the father appeals.
The orders made were largely in the terms of the orders sought by the mother and ICL in advance of the trial. The father had, until entering into the consent orders, been seeking that the child have telephone time with him on special occasions, that he be at liberty to send cards and gifts and, most significantly, that if he filed an application to vary the final orders Rice & Asplund[6] would not apply. He had not, as he is now on appeal, been seeking an order providing for the child to spend any time with him, supervised or not.
[6](1979) FLC 90-725.

Application to adduce further evidence on appeal

On 8 January 2021 the father filed an application seeking to adduce further evidence and a supporting affidavit. That affidavit annexes a number of documents which the father, it seems, says support his position that “he has now made up his mind that recovery from poly-substance abuse is by far easier than returning to his older methods of dealing with terrifying & stressful life encounters” (affidavit of the father filed on 8 January 2021, paragraph 5). By “older methods”, the father is apparently referring to his long history of drug and alcohol abuse.
The affidavit of the father filed on 8 January 2021 annexes the following “exhibits”:
a)Exhibit 1 – Certificate of completion of a rehabilitation program dated September 2020;
b)Exhibit 2 – Letter from D Service dated 16 December 2020 confirming the father’s attendance at drug and alcohol counselling on 29 October 2020, 6 November 2020, 12 November 2020, 26 November 2020, 3 December 2020, and 16 December 2020;
c)Exhibit 3 – Hair analysis drug test result, collection date 3 December 2020;
d)Exhibit 4 – Letter from the father’s treating psychiatrist, dated 23 October 2020 outlining that “[i]t is evident that [the father] can maintain abstinence for prolonged periods of time and is keen to engage with support services”;
e)Exhibit 5 – Protection order dated 2017 where the father is the respondent, the mother is the aggrieved and the child is named;
f)Exhibit 6 – Queensland Police Service Court Brief dated 2017;
g)Exhibit 7 – Statement of the mother dated 2017;
h)Exhibit 8 – Statement of the maternal grandmother dated 2017;
i)Exhibit 9 – Summons addressed to the mother’s solicitor requiring her to appear in 2017; and
j)Exhibit 10 – Transcript of proceedings in the Magistrates Court in 2018.
The ICL’s Summary of Argument filed on 15 January 2021 notes that exhibits 6, 7, 8, 9 and 10 were all available at the time of trial, the details of exhibit 5 (the protection order) were available and exhibits 1, 2, 3 and 4 are all dated subsequent to the final orders.
Each of the mother and the ICL opposed the father’s application to adduce further evidence on appeal essentially on the contention that none of the documents sought to be adduced by way of further evidence is capable of establishing any error on the part of the primary judge. The ICL emphasises that rather than an appeal the appropriate course for the father to take in seeking orders of the kind he purports to seek on appeal would be to file an Initiating Application seeking to vary the current final orders by reference to the steps the primary judge outlined for the father in the judgment the primary judge delivered on 14 November 2019 as earlier quoted.
Further reference will be made to this application after discussion of the father’s challenges on appeal.

Grounds of appeal

The father’s Notice of Appeal filed on 25 September 2020 contains the following eight grounds of appeal:
1. The Presiding Judge has made an unlawful ruling.
2.The Judge has made an error in a finding of fact and finding of law.
3.The Judge has not taken into account the fathers rights, as the rights are legislated.
4.The Judge has not taken into account the behaviour of the opposing party and has ruled completely dismissing the fathers rights.
5.The fathers aided representation was professionally incompetent to the point of professional negligence to have the final orders, made 31 August 2020, ruled against him.
6.The fathers representation lined him up and never gave him a chance. Their advice was to surrender when the father had the evidence that the opposing party had constantly tried to undermine him. This is a miscarriage of Justice orchestrated by his own aided representation.
7.The father himself sought an adjournment earlier in the month of August 2020 which was denied by [the primary judge].
8.The father has been completely stripped of his rights as a father and was incompetently represented by people who did not have his best interests in mind.
(As per the original)

Grounds 1–4

These grounds, as expressed, contain no sufficient particulars such that it is not possible to discern the precise error or errors of the primary judge purportedly asserted. The father’s Summary of Argument for the appeal does not provide any relevant illumination.
The transcript of the proceedings before the primary judge on 31 August 2020, on what was to be the first day of the trial of the parenting proceedings, confirms that the primary judge received a tender bundle of subpoenaed material relied upon by the ICL which was admitted into evidence as Exhibit 1. Her Honour also received the proposed consent orders signed by all parties and the mother’s written submissions were received and marked as Exhibit 2. There was no objection taken by the father’s counsel to the receipt of the exhibits and nor did the father’s counsel seek to make any submissions to the primary judge as to the making of the consent orders, despite being afforded the opportunity to do so. It is clear then that the primary judge was not tasked to determine any issue of disputed fact as between the parties and her Honour was requested, by all parties, to make orders in the terms of the consent orders which they had each agreed to and signed. In that context the primary judge recorded:[7]
HER HONOUR: All right. Well, having had an opportunity to the orders I’m being asked to make by consent, signed by the parties today, and having had an opportunity to consider the written submissions, which are exhibit 2, and also the relevant part of the subpoena material in exhibit 1 that are referred to in those submissions, I make these orders in the best interest of [the child], born 1 April 2011.
(As per the original)
[7]Transcript 31 August 2020, p.5 lines 9–13.
In Darley & Darley[8] the Full Court of this Court (Strickland, Murphy & Forrest JJ) observed the following concerning the making of consent orders:
[8][2016] FamCAFC 10.
40.This Court said in Robinson and Willis, that the authorities illuminated the following relevant principles:
1.The fact that an order is made by consent does not make that order of any different nature from an order made otherwise … The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties.
2.Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction …
(Italics in original; underlining added).
41.Reference was made in that case to the decision of the English Court of Appeal in Thwaite v Thwaite, where the Court of Appeal said that:
Similarly, as orders of the court, [consent orders] must be subject to the provisions which apply to appeals from orders made at first instance, though with one important exception. Where the court of first instance has not adjudicated on the evidence, its decision cannot be challenged on the ground that the court has reached a wrong conclusion on the evidence before it. Final orders of all kinds, however, can be challenged on appeal and may be set aside on other grounds.
42.Here, the parties were entitled to have the trial proceed to its conclusion and have his Honour “adjudicate it on the facts” including the competing serious assertions made by both parties and the single experts. However, they did not. By their respective applications to have his Honour make the orders they had each agreed to, each party was asking his Honour not to adjudicate upon the issues. Further, each party was, by their respective application, asserting that the orders proposed to be made were in the best interest of the children.
(Emphasis in original) (Footnotes omitted)
The application of these principles[9] results in the conclusion that there is no merit in these grounds.
[9]See also Melville & Melville (No. 3) (2020) FLC 93-985 at [12].
I only need add in respect of Ground 3 (and relevant to Ground 8) that it is well settled that the legislative intent of Part VII of the Act is to focus upon rights of children, on the one hand, and duties, obligations and responsibilities of parents on the other.[10]
[10]See Blaze v Grady (2015) 54 Fam LR 172 especially at [101] and following; Cooke & Morton (2018) FLC 93-820 at [39] and Winship & Wrays (2019) FLC 93-928 at [65].
No legislated “right” of a parent is infringed by the making of parenting orders driven by the imperative of meeting the best interests of a child or children. The father’s complaints in Grounds 3 and 8 premised upon his “rights” as a parent are misconceived.

Grounds 5, 6 and 8

These grounds may be dealt with together given that each contain the allegation or assertion to the effect that the lawyers representing the father at the time were incompetent to the point of “professional negligence” (Ground 5) or that they “lined him up” and did not properly advise him (Ground 6) and that he was “stripped of his rights as a father and incompetently represented” (Ground 8).
In OP v TP & Anor (Conduct of Counsel)[11] the Full Court (Nicholson CJ, Buckley & Kay JJ) observed this about the conduct of legal representatives:
123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
…
128.We think it is the fact of the best interests principle that further distinguishes child related cases under the Family Law Act. Applying the above principles we think that there are two issues to be established. One is as to whether incompetence on the part of counsel has been established, and we would adopt the view taken by O’Connor J in Strickland, above, as the appropriate one in applying this test. The other is the issue of prejudice and we think that the appropriate test to be applied to the issue of prejudice is that adopted in DB’s case, above, that is, but for the incompetence of counsel, is it reasonably probable that the result of the trial would have been different? There may, as was pointed out in DB’s case, be cases where the procedural irregularities are such as to demonstrate a miscarriage of justice regardless of the result. In our view such cases would be less common and we do not regard this case as falling into that category.
[11](2002) 30 Fam LR 281.
Nothing in the father’s grounds of appeal, or in his Summary of Argument, or in his application for further evidence on appeal, or in his oral argument on appeal, identifies anything whatsoever about the asserted conduct of his lawyers as to sustain a characterisation of incompetence in their conduct. Bare assertions of incompetence do not establish that serious allegation. It follows that, having failed to establish incompetence, the father also fails to demonstrate the necessary nexus between established incompetence and the result embodied in the consent orders. In other words, that but for the established incompetence of counsel, it is reasonably probable that the result would have been different.
In this context it bears emphasis that in his Case Outline for the trial filed on 28 August 2020, the father did not seek orders for the child to spend time with him but sought only orders for telephone communication on special occasions and the sending of letters and gifts. Likewise relevant in this context is that in addressing Ground 7 (discussed further below), the complaint about an adjournment being refused earlier in the month of August 2020, the father asserts:
The father had indicated in his application that he requires a clear path of time to abstain from poly-substance abuse and reflect upon re-cooperation from post-trauma from acts of terrorism inflicted by the other party.
(As per the original)
There is no merit in these grounds of appeal.

Ground 7

By an Application in a Case filed on 5 August 2020 the father had sought to adjourn the trial listed for 31 August and 1 September 2020 “for a 6-12 month period”. That application was predicated upon the father’s contention in his affidavit filed in support that he needed further time to address “poly-substance abuse issues” and to undertake an addiction treatment program.
However, as the background earlier summarised reflects, the father’s

“poly-substance abuse issues” have been a feature of the father’s presentation for many years and at least since the 2014 commencement of parenting proceedings in the FCC.
The parents’ engagement in parenting litigation for many years culminated in the final orders that were made on 12 September 2017 earlier referred to. Proceedings were recommenced some six months later in March 2018 and it is plain that resolution of parenting issues on a final basis was clearly in the child’s best interests.
No error is demonstrated on the part of the primary judge in her Honour’s refusal to adjourn the trial. Moreover, as has been pointed out to the father on various occasions, and in particular the reasons for judgment delivered by the primary judge on 14 November 2019 as earlier referred to, the father is entitled to bring application for a variation of parenting orders in future if he is able to demonstrate a material change in circumstances including by reference to him dealing with his addictions and poly-substance abuse issues.
As is also pointed out in the submissions of the mother and the ICL, there was no appeal by the father from the order dismissing his application for an adjournment nor was there any application at the outset of the trial itself to adjourn the proceedings. The father elected to enter into consent orders. Whilst he contends his legal representation was incompetent he does not agitate any complaint to the effect that he was subjected to some extreme level of coercion in so doing.
There is no substance in this ground.

Conclusion

For the reasons earlier discussed the subject orders, made not as an adjudication by the court but made as a consequence of the parties’ consent, cannot be appealed on the merits. The nature and content of the further evidence the father seeks to adduce on appeal could only be relevant to a challenge on appeal as to the merits. It follows that there is no legitimate basis to exercise the discretion provided by s 93A(2) of the Act to receive this evidence. It also follows that none of the criteria for the admission of further evidence on appeal identified by the High Court of Australia in CDJ v VAJ[12] are met. The application for further evidence on appeal is dismissed.
[12](1998) 197 CLR 172.
There being no merit in any of the father’s grounds of appeal the appeal is dismissed.

Costs

In the event of the appeal being dismissed each of the mother and the ICL sought orders for the father to pay their respective party and party costs of the appeal.
The father submitted on appeal that his sole source of income is the disability support pension and that he has no assets of significance.
With respect to the application for costs of the ICL, s 117(4)(b) of the Act provides that the Court must not make an order under subsection (2) in relation to the costs of the ICL if the Court considers that a party would suffer financial hardship if the party had to bear a proportion of the costs of the ICL. In my judgment the father would likely suffer financial hardship if an order for costs were imposed in respect of the costs of the ICL and on that basis the application regarding the ICL’s costs is refused.
With respect to the mother’s application, whilst she earns income in the order of $75,000 per annum she has no substantial assets. It is obvious that the financial support of the child falls solely to the mother. The mother undertakes caring responsibilities for the child on a full time basis.
The father has been wholly unsuccessful in the appeal within the meaning of s 117(2A)(e) of the Act. Moreover, the mother’s costs on appeal would have been avoided if, rather than pursuing a meritless appeal, the father initiated fresh parenting proceedings if and when he is in a position to demonstrate that he has successfully addressed the impediments to his parenting capacities that have long existed in the form of his poly-substance abuse and addiction issues.
Impecuniosity of a party ought not stand in the way of an otherwise warranted costs order as was noted by the High Court of Australian in Northern Territory v Sangare.[13]
[13](2019) 265 CLR 164.
The mother has been subjected to having to incur costs she being self-funded for the purpose of this litigation.
The mother seeks an order for costs in a fixed sum of $11,660.58 with the calculation of that sum being set out in her Schedule of Costs filed on 20 January 2021.
I am satisfied that there are justifying circumstances within the meaning of s 117(2) of the Act for there to be an order for the father to pay the mother’s costs and I am satisfied that the fixed sum sought by the mother is just within the meaning of s 117(2). The mother sought, in view of the father’s financial circumstances, that he be ordered to pay the costs within three months of the date of orders. In my judgment the father ought be permitted a period of six months to meet payment.
For these reasons I make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 February 2021.

Associate:

Date: 4 February 2021