F & C
[2005] FamCA 573
•6 July 2005
[2005] FamCA 573
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No. SA 13 of 2004
File No. ML 10368 of 1994
AT MELBOURNE
BETWEEN:
F
Appellant Father
- and -
C
Respondent Mother
REASONS FOR JUDGMENT
CORAM:Holden, Warnick and O’Ryan JJ
DATE OF HEARING: 21 June 2004
DATE OF JUDGMENT: 6 July 2005
APPEAL SUMMARY
MATTER:F and C
APPEAL NUMBER: SA 13 of 2004 (ML 10368 of 1994)
CORAM:Holden, Warnick and O’Ryan JJ
DATE OF HEARING: 21 June 2004
DATE OF JUDGMENT: 6 July 2005
CATCHWORDS:
APPEAL – PRACTICE AND PROCEDURE – procedural fairness – whether miscarriage of natural justice – whether trial Judge erred in hearing the matter in the husband’s absence – husband experienced in family law litigation – effect of protracted litigation on child and other party – whether trial Judge displayed bias against husband – role and conduct of Child Representative – CHILD RESIDENCE – relocation – whether trial Judge made relevant errors of fact – whether trial Judge correctly applied authorities on relocation
Norbis v Norbis (1986) 161 CLR 513
Commonwealth Bank of Australia v Quade and Others (1991) 178 CLR 134
[W] and [C] [1999] FamCA 1952
Johnson v Johnson (2000) 201 CLR 488
A v A: Relocation Approach (2000) FLC 93-035
U v U (2002) FLC 93-112
AMS v AIF; AIF v AMS (1999) FLC 92-852
Appeal dismissed.
Introduction
This is an appeal by the husband against final parenting orders made by Brown J. on 2 February 2004. Her Honour made the following orders:
“(1) That the following orders be discharged forthwith:
(a)paragraphs (3), (5) and (6) of the orders made herein on 3 December 1999; and
(b)paragraph (2) of the orders made herein on 20 January 2000.
(2) That the wife be permitted to change the residence of the child of the marriage… born…March 1995 to Port Augusta in the State of South Australia.
(3) That subject to paragraph (4) hereof the husband have contact with [the child] as follows:
(a)during South Australian school term holiday periods, for one week commencing on the first Saturday of the term holiday and concluding on the following Saturday;
(b)during the South Australian school Christmas holiday period for three consecutive weeks, commencing on the first Saturday of the Christmas holiday period and concluding on the fourth Saturday of the said period.
(c)by telephone as follows:
(i)during school terms, on each Wednesday between 7.00 p.m. and 8.00 p.m.; and
(ii)in the event the husband does not have contact with [the child] on any of these days, on each of Fathers’ Day, the husband’s birthday and [the child’s] birthday, between the hours of 7.00p.m. and 8.00 p.m.
PROVIDED THAT:
(A)telephone contact pursuant to this order be initiated by [the child] telephoning the husband; and
(B)the husband keep the wife informed of a telephone number to be used by [the child] to initiate telephone contact;
(d)at such other times as are agreed in writing by the parties.
(4) For the purpose of contact pursuant to paragraphs (3)(a) and (b) hereof:
(a)the wife provide, at her expense, a return airline ticket for [the child] to travel between Adelaide airport and Melbourne (Tullamarine) airport;
(b)the wife notify the husband in writing of the date and time of travel, the name of the airline and the relevant flight details not less than one calendar month prior to the commencement of each contact period;
(c)the husband notify the wife in writing no later than two weeks prior to the commencement of the contact period that he intends to exercise contact during that contact period; and
(d)in the event the husband fails to confirm that he will be exercising contact as required by paragraph (4)(c) hereof, that contact period shall be suspended.
(5) That for the purpose of contact pursuant to paragraphs 3(a) and 3(b) hereof, the time at which contact shall commence on the first day of a contact period shall be the time at which the flight on which [the child] is booked by the wife from Adelaide to Melbourne, arrives at Melbourne (Tullamarine) airport.
(6) That for the purpose of contact pursuant to paragraphs (3)(a) and (b) hereof, the time at which contact shall conclude on the last day of a contact period shall be the time at which passengers are required to board the flight in Melbourne (Tullamarine) airport on which [the child] is booked by the wife from Melbourne to Adelaide.
(7) That pursuant to s65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure ‘A’ and these particulars are included in these orders.
(8) That the following applications be struck out with a right of re-instatement:
(a) the form 63 application filed by the wife on 18 March 2003; and
(b) the form 46 summons filed by the wife on 18 March 2003.
(9) That the costs of the wife and the child representative of this day be reserved.
(10) That the wife’s form 3 application filed 15 July 2003 and the husband’s form 3A response filed 31 July 2003 be otherwise dismissed.”
The hearing took place before her Honour on 2 February 2004 in the husband’s absence. A child representative had been appointed and was represented by counsel. As well, a Family Report prepared by a court counsellor on 30 October 2003 was admitted into evidence, however the Counsellor was not cross-examined. At the conclusion of the hearing her Honour delivered judgment and made the orders sought by the wife. The Child Representative supported the orders of the wife.
The husband relies upon an Amended Notice of Appeal filed on 7 April 2004. He seeks that the orders be set aside and the matter remitted for a hearing.
Before us the husband appeared without legal representation and there was no appearance by or on behalf of the wife. By letter dated 9 June 2004 the solicitor for the wife advised the Appeals Registrar that the wife would not be taking part in the appeal because of the ongoing cost of litigation given the costs she has already incurred but agrees to be bound by any decision of the Court. There was also no appearance by or on behalf of the Child Representative. By letter dated 18 June 2004 the Child Representative advised the Appeals Registrar that there would be no appearance by the Child Representative as the Child Representative did not have a grant of legal aid.
On 11 June 2004 a written summary of argument was filed by the husband.
Background facts and judgments of the trial Judge
The husband was born in 1957 and the wife was born in 1960. The parties commenced cohabitation in early 1987. The parties were married in May 1988 and following several periods of separation during the marriage the parties separated for the last time in May 1996. There is one child of the marriage born in March 1995.
At the time of the trial the wife was a qualified pharmacist and was employed by a hospital. The husband is a computer programmer.
The trial Judge delivered two judgments on 2 February 2004, titled ‘Judgment 1’ and ‘Judgment 2’. The first judgment concerns the issue of whether the trial Judge should proceed to hear the applications for final parenting orders in the husband’s absence. In the second judgment her Honour dealt with the applications for final orders.
Since the parties’ separation there has been protracted litigation. In her first judgment her Honour, referring to the child, said:
“1. It would be trite to say that this matter has a long history...The parties have been engaged in litigation for almost the whole of her life.”
In her first judgment her Honour said that on 3 December 1999 Guest J. made final parenting orders and that pursuant to these orders the child was to live with the wife who was to have sole responsibility for her day to day and long term care, welfare and development. The child was to have contact with her father on each alternate weekend, for one half of each of the three school term holidays and for specified periods in the Christmas school holidays.
Her Honour said:
“3. Amongst the orders made by Guest J. were orders restraining the husband from harassing, molesting or abusing the wife, from attending at her residence or otherwise communicating with her save in the event of an emergency, from criticising or denigrating the wife to any person in the presence of [the child] and, save for legal purposes, communicating or publishing any information the subject of or concerning the proceedings. He was also restrained, other than in an emergency, or other situation requiring immediate medical attention, from having [the child] examined by any medical practitioner or any other professional person. The orders provided for the husband to pay the wife’s costs, which were fixed at $10,000.”
Her Honour said:
“4. Numerous applications have been made since then, some of which I will refer to later.”
On 30 August 2000 Bell J. restrained the husband from instituting proceedings without first obtaining leave of the Court. Her Honour said: “Many applications for leave have been made since…”
On 18 March 2003 the wife filed an application seeking departure from an administrative assessment for child support, for child support to be paid by way of lump sum and an enforcement summons which related to costs unpaid by the husband pursuant to several costs orders. On 2 February 2004 counsel for the wife sought that each of the applications be struck out with a right of reinstatement and her Honour in her first judgment said that she would adopt that course and that it could not prejudice the husband.
The proceeding which is the subject of this appeal was initiated by application filed by the wife on 15 July 2003. The wife sought the discharge of a number of orders made by Guest J. on 3 December 1999 and 20 January 2000 and sought different contact orders. In her first judgment her Honour set out the contact orders sought by the wife and said:
“5. …Although she did not specifically seek an order allowing [the child’s] residence to be moved to South Australia, the orders sought by her included provision for her to pay for return air travel for [the child] from Adelaide to Melbourne for contact periods and I am satisfied that the issue of relocation was firmly before this Court early in the proceedings.”
The wife impliedly sought to relocate the child from Melbourne to Port Augusta.
A response was filed by the husband on 31 July 2003 and he also sought a discharge of orders made by Guest J. on 3 December 1999. In her first judgment her Honour set out the orders sought by the husband. He sought that the child reside with him and that the wife have contact.
On 6 November 2003 the husband filed an application seeking leave to file an application to have additional contact with the child in the 2003/2004 summer school holidays. This application came before her Honour on 25 November 2003 and she did not grant leave.
In relation to the applications for final parenting orders filed in July 2003 ‘trial notice directions’ were made and a pre-trial conference fixed for 28 November 2003. If the parties complied with the ‘trial notice directions’ then at the pre-trial conference trial dates would ordinarily be allocated. However, the parties did not comply with the ‘trial notice directions’ and in the result the pre-trial conference was vacated and the applications were listed in what for case management purposes is called the ‘defaulters’ list’. When the matter was before Her Honour on 25 November 2003 the proceedings were also listed in the defaulters’ list and she said directions were made that resulted in the applications being listed for hearing to commence on 9 February 2004. A pre-trial conference was held on 11 December 2003.
The wife swore an affidavit on 9 November 2003 setting out her evidence in chief. The husband swore an affidavit on 5 December 2003 setting out his evidence in chief.
On 15 December 2003 another application was filed by the husband in which he sought leave to make an application for additional contact during the 2003/2004 summer school holiday period.
In her first judgment her Honour said that subsequent to the cross-applications for parenting orders being listed for hearing to commence on 9 February 2004 on or about 29 December 2003 the parties were advised that as the mediator who had prepared a family report would not be available in the week commencing 9 February 2004 the hearing would be listed to commence on 2 February 2004.
On 5 January 2004 the husband filed an application for leave to file two contravention applications and an application that the wife be dealt with for contempt in respect of alleged breaches of an order made by Hase J. on 10 December 1996. The husband also sought leave to file an application for an order seeking recovery of the child.
The applications for leave filed by the husband on 15 December 2003 and 5 January 2004 came before Bell J. on 19 January 2004 and his Honour dismissed both applications. However, in her first judgment her Honour noted that Bell J. gave the husband leave to file an application to vacate the trial date (2 February 2004) by 4:00 pm. on 23 January, 2004. She said:
“15. …It is clear that the husband made it clear to Bell J. that he wished the trial date to be adjourned. His Honour’s order cleared the way to the making of an appropriate application, and provided for it to be given an urgent listing date. None was made.”
In her first judgment her Honour also recorded that the orders of Bell J. made on 19 January 2004 required the husband to file and serve a financial statement by 4.00 pm on 23 January 2004. Her Honour noted that the husband did comply with the order to file a financial statement however he did not file an application seeking to vacate the trial date and have another date appointed. Her Honour said:
“17 Bell J’s order could not have been made more clear. As is apparent even from my summary of proceedings over the last few months, the husband is no stranger to litigation. He has considerable experience in filing applications in this Court.”
Her Honour said that instead of filing an application to vacate the trial date the husband sent one or more letters to the Court and the most recent letter was dated 27 January 2004 which is partly reproduced in the judgment as such:
“Further to my letter to you dated 5 January, 2004 which was responding to your letter dated 29 December, 2003.
As I have informed you in my previous letter, I will be in Sydney during the week commencing 2 February 2004 and therefore unable to accommodate the trial date, which was fixed at the pre-hearing conference held 11 December 2003 to commence 9 February 2004, being brought forward to commence 2 February 2004.
I request that the matter be either returned to the originally listed date of 9 February 2004, or if Ms [H] remains unavailable until after 23 February 2004, to a date after the 23 February 2004 to enable Ms [H] to be called for cross-examination regarding her report.
Being self-represented, and the matter being a contested matter, I would need to present my material and have the opportunity to cross-examine the called witnesses. As such, I wish to bring this to the attention of the presiding judge and request that you forward a copy of this letter and previous correspondence to the judge’s associate, as I have no contact details.
I have sent a copy of this letter to the other parties in the matter.”
On 30 January 2004 the husband filed a written summary of argument and the trial Judge referred to parts of this document in her judgment.
When the matter first came before her Honour on 2 February 2004 there was no appearance by or on behalf of the husband. There was however an appearance by the wife and the child representative and both were represented by counsel. The transcript reveals that the hearing was briefly adjourned on two occasions and both the wife and the child representative sought that the hearing proceed notwithstanding the absence of the husband.
Her Honour then delivered the first judgment in which she considered whether the hearing should proceed in the absence of the husband and she determined that she should proceed to hear and determine the matter. However, her Honour said that she would not strike out the husband’s response and that the affidavit and financial statement sworn by him would form part of the evidence.
The trial Judge described a conversation between the Child Representative and the husband that took place on the morning of the trial at which time the husband was travelling to Sydney:
“19 The child representative has spoken to the husband this morning. He has told me (this was confirmed by contact by him with [the child’s] school) that the husband dropped [the child] at school here in Melbourne this morning. The husband told the child representative that he was travelling to Sydney at the time they spoke, and he had got as far as Wodonga, some three hours drive from Melbourne. He told the child representative that he did not have time to make an application to vacate the date or adjourn the hearing, he was too busy, the wife had not turned up a number of times in the past and it would be unfair to proceed without him.
20 The child representative has advised that he told the husband of the orders which counsel for the wife had foreshadowed making. These were not exactly as set out in the original form 3 application, and I will refer to the differences later, but they are not differences of substance. According to the child representative the husband reiterated that it would be unfair, he would appeal and he would do whatever was necessary to achieve the outcome he sought.”
With regard to the husband’s reported attitude the trial Judge said:
“21 The husband was in Melbourne at or around 9:00 am. this morning. He had been given an opportunity to apply to vacate the trial date. By delaying his proposed travel for one hour he could have been at this Court when the matter was called at 10:00 am. He elected not to attend.
22 Litigation is not some form of complicated steeple-chase. It is not a game. Its purpose is not to harass the other party or parties or be an instrument to maintain a feud with a former partner. [The child] has been the subject of litigation between her parents since 1996. A chronology of legal proceedings forms part of the wife’s affidavit filed in the parenting proceedings. It gives a strong sense of the entrenchment of the husband in litigious mode.”
Towards the end of the judgment the trial Judge outlined the failure of the husband to file an application to vacate the trial date despite writing letters and given his experience in filing so many other applications as a self-representing litigant. She said:
“25 On my count the husband filed a Notice of Appeal, four forms 8, two forms 44 and one form 63 application between the time Guest J. made final parenting orders in December 1999 and the time Bell J. made the order pursuant to s.118 of the Family Law Act 1975 in August 2000. Since then the husband has filed some two form 3 applications, ten form 8 applications, one form 44 review, two form 63 departure applications and one form 64 child support application. Yet he was not prepared, having been given leave, to file a simple form 8 application seeking to vacate the trial. He was not too busy to prepare, swear and file the financial statement ordered by Bell J. Nor was he too busy to prepare a detailed 6 page summary of argument, which was filed on 30 January, 2004. In a cavalier way the husband has simply elected to ignore the opportunity he was given to put proper material before the Court as to why the trial date should be vacated, and relied on his non appearance to achieve what he may have doubted could be achieved through a proper application.”
Her Honour discussed the effect of the protracted litigation on the child, in the context of a Family Report prepared by Ms H. Her Honour stated:
“23 …Ms. [H] noted that [the child] stated in her interview that she has grown up in the context of her parents’ ongoing dispute in relation to her residence. She has only known conflict and hostility between them and her strongest wish was to belong to a happy family. In Ms. [H’s] opinion [the child] felt pressured to choose between her parents and was currently emotionally burdened by the ongoing pressure and anxiety in relation to the lack of finality of her residence.
24 [The child] indicated that she was upset and unsettled by her father frequently talking to her about living with him and she was very distressed by the ongoing conflict. [The child’s] teachers outlined to Ms. [H] a number of emotional and behavioural problems that [the child] is experiencing, problems which Ms. [H] reported often occur for children from high conflict families involved in ongoing litigation. [The child] will not be able to satisfactorily address these problems until the issue of her residence is resolved and the parental issues are addressed.”
Her Honour thus concluded:
“26 In my view, having regard to the evidence of [the child’s] emotional state, the need to focus on her best interests, the lengthy history of the matter and the submission of the child representative that I should proceed to hear and determine the matter, I propose to do so.”
After the trial Judge delivered the first judgment she then proceeded to deal with the applications for final orders which included the application of the husband. During the hearing the wife gave some oral evidence and was cross-examined by counsel for the Child Representative. At the conclusion of the hearing her Honour delivered the second judgment and made final orders.
In her second judgment her Honour firstly set out the competing proposals of the parties. The wife proposed to relocate with the child from Melbourne to Port Augusta. There she had the opportunity for significantly better paid work as a clinical pharmacist which she submitted was important because the husband pays no child support, she had outstanding costs orders in her favour despite attempts to enforce them, and the pursuit of the litigation by the husband resulted in an enormous financial burden. She had purchased a property in Port Augusta for a modest sum reducing her commitments but this would need to be sold if the Court found against relocation. She submitted that she would be closer to her family in Adelaide and had a number of friends in Port Augusta.
The proposed contact arrangements were then outlined as such:
“5 The wife proposed that the husband have contact with [the child] for one week of each school term vacation, three weeks in the summer school vacation (to include Christmas Day and New Year’s Day in each year, in order to avoid the potential for further applications by the husband) and telephone contact. Whilst significantly less than the contact he now has with [the child], it was her submission that this arrangement would foster and maintain their relationship, and relieve [the child] of the pressure of which Ms. [H] wrote in the family report.”
Her Honour identified some differences between the orders set out in the wife’s initiating application and those sought before her Honour. She then outlined the husbands proposal:
“7. The husband proposed that all orders of Guest J. be set aside and that [the child] live with him and he have sole responsibility for her day to day care, welfare and development. He proposed that the wife have contact on each alternate weekend from Friday afternoon until Monday morning, the first week of each school term holiday, one half of the school summer holiday period, to be made up of alternating block periods of one week, and telephone contact.”
As to the husband’s arrangements for the child her Honour said:
“8. The husband proposed that [the child] live with him in a three bedroom house in [L] which she has visited “on many occasions”. She would attend [a] Catholic School which is attended by a cousin and other children he referred to as “her three closest friends in [L]”. He deposed that his working schedule would enable him to take her to school and collect her from school and, if necessary, he has available the assistance of relatives and friends.”
Her Honour said that the husband described himself as a computer programmer and she recorded what the husband said about his income.
Under the heading ‘ISSUES” her Honour discussed the initial parenting proceedings in 1999 heard by Guest J. She cited several passages from his judgment and said:
“11. …In the course of that judgment his Honour made findings about many and various allegations that the husband had made and on which he placed reliance in that trial.
12. Guest J found that the husband maintained a continuing hostility towards the wife and what he referred to as a planetary lack of compassion for her. He found that the husband's negative view of her was extreme, particularly his contemptuous attitude towards her.”
Her Honour noted that regrettably in the proceedings before her the husband again made many of the same allegations he made before Guest J. and she identified various paragraphs of the husband’s affidavit sworn on 15 December 2003. Her Honour said that the husband also told Ms H that he believed Guest J. was biased against him, that the outcome was wrong, and that he always intended to reapply for residence of the child. Her Honour explained that she placed “no weight on evidence or allegations made in submissions relating to the period prior to the decision of Guest J.”
Her Honour gave the following summary:
“17. The husband contends that [the child] should live with him and that a move would be consistent with her wishes. I will consider that and the other reasons which he advances in support of a move when considering the s.68F(2) factors. Integral to his case is a submission that to allow [the child] to live with the mother in Port Augusta would have a negative and detrimental affect on [the child], and have the potential to irretrievably damage his relationship with her. For her part, the wife contends that any variation of the orders pursuant to which [the child] lives with her and she is responsible for her day to day and long term care, welfare and development would be contrary to [the child’s] best interests, and that those best interests will be advanced by she and [the child] moving to live in Port Augusta.”
Her Honour also discussed the evidence she would consider given the ex parte nature of the proceedings:
“18. The husband has elected not to come to court. I did not strike out his response, and his affidavit and financial statement are part of the evidence before me. I take account of the matters raised in the summary of argument filed by him on 30 January, 2004. I also take account of the fact that by failing to appear he has not subjected himself to cross‑examination about the many allegations he makes against the wife, or his proposals. It is the wife who has been cross‑examined by counsel for the child representative, and I accept his submission that in respect of all matters put to her she answered frankly and responsibly.”
Her Honour then dealt with the ‘LAW’ and explained that the objects and principles contained in ss. 60B(1) and (2) of the Family Law Act 1975 (Cth) (“the Act”) are subject to s. 65E and that the object in s 60B(1): “...can be regarded as an optimum outcome but may not be of great value in the adjudication of individual cases”. Her Honour said that the principles in s. 60B(2) are more specific but not exhaustive. She said that: “Those which are relevant must be considered by the Court in the same way it considers the matters in s. 68F(2).” However she stressed that the best interests of the child is the paramount but not the sole consideration.
Her Honour considered various authorities which have dealt with the approach to be taken in a case in which one of the proposals is that a child reside with a parent who is seeking to relocate being H and L (2000) FLC 93-036, A v A: Relocation Approach (2000) FLC 93-035, AMS v AIF; AIF v AMS (1999) FLC 92-852, Paskandy v Paskandy (1999) FLC 82-878 and Martin v Matruglio (1999) FLC 92-876.
Her Honour then dealt with the evidence presented to her. This included the wife’s affidavit sworn on 9 November 2003 and the husband’s sworn on 5 December 2003, and a statement of financial circumstances by both parties.
As to the husband’s affidavit her Honour said:
“26. the difficulties in assessing evidence advanced by the husband is his The order 30 affidavit sworn by the husband is a mixture of evidence, opinion and argument. It demonstrates little capacity to separate out matters which (if true) would be of genuine concern and is partial in referring to parts of reports or conversations.
27. One of tendency to automatically interpret neutral or benign comments in ways adverse to the wife, and to only hear those parts of other conversations or reports that are perceived to be of assistance to his case.”
Her Honour then gave two illustrations.
Her Honour also found that the wife’s affidavit contained some inadmissible material in the nature of submissions. Her Honour identified the Family Report prepared by Ms H and said that she placed weight on her expert evidence.
Her Honour then proceeded to deal with relevant matters specified in s 68F(2) of the Act. As to the wishes of the child she said that the only objective evidence of the child’s wishes is that contained in the Family Report and that :
“41. Ms. [H] reported that [the child] had not expressed a strong wish or need to change residence…
42 [The child’s] clear desire not to have to choose between her parents should be respected. This is not a case in which I find that her wishes could be determinative, or a matter of significant weight. I do take into account such evidence as there is of them, and the concern she has expressed on occasions about missing friends and animals, and of diminished contact with her father.”
Her Honour then dealt with the relationship of the child with each of the parents and other persons and said:
“45. The evidence supports a finding that each of the parents has a warm, loving and appropriate relationship with [the child] and that [the child] loves them both. The wife agreed that [the child] has a good and loving relationship with her father, albeit one that is overly indulgent, and that [the child] enjoys the relationship.
…
47. …For the purpose of this judgment I accept that [the child] has warm and appropriate relationships with the paternal relatives, as deposed by the husband, and as noted by him in his summary of argument.
48. The maternal grandparents do not live in Victoria, so [the child’s] contact with them has been more limited. Nevertheless, there was evidence of the wife’s father making regular trips to Melbourne to visit them and residence in Port Augusta would mean she would be significantly closer to her parents and sister (all of whom live in Adelaide) than she is in Melbourne. She lived in Woomera when young, and a number of friends from that time live in Port Augusta. They would not be well known to [the child].”
Her Honour then considered s 68F(2)(c), which she described as an important factor, and said:
“49. …A move to live with her mother in Port Augusta would involve a new school, new school friends, and a new set of relationships, in the sense that her mother would be interacting with different people and she would be living in a different environment to that she has known...
50. A move to live with the husband would involve a change of school and new school friends, although his evidence is that a few of those children would be known to her. She would be familiar with many members of his family and friends.
51. Were [the child] to move to live with her mother in Port Augusta she would have significantly less face to face contact with her father. Contact would be limited to school holiday periods, as well as by telephone and correspondence. The potential reduction in contact is a significant factor.
52. This is not a case where the Court could take the view that it would be easy to arrange additional contact by agreement between the parties. As noted by Ms [H] it is apparent there is absolutely no trust or capacity for co-operation between the parents. The husband has continued to have absolutely no respect for the wife’s parenting, evidenced by his exhaustive list of concerns and criticism of her personal and parenting qualities. In the past he has interpreted an order that provided for additional contact by agreement as meaning he has an entitlement to additional contact…
…
54. Relationships cannot be measured in purely quantitative terms, but it is understandable that the husband is concerned that his fortnightly contact during school terms would be lost were the Court to acceded to the wife’s application.
55. I do not find that a loss of that contact during the school term would alienate [the child] from her father or severely compromise the relationships that she has with her paternal relatives and friends. [The child’s] relationship with her father is loving and strong and there is no reason to assume that would alter were she to spend time with him at less regular intervals.
56. A likely affect of [the child] relocating with her mother would be to remove some of the ongoing pressure and anxiety she is presently experiencing. In a different case the Court might find that a judicial determination would itself relieve her of that pressure, particularly the pressure of her father “going on and on” about her living with him. However, in this case another set of final parenting orders is as unlikely to curb the husband’s commitment to encouraging her to move to live with him as were the orders made in 1999.
57. It is probable that [the child] is experiencing emotional and behavioural problems which are directly attributable to her enmeshment in the high conflict dispute between her parents. It is probable she will not be able to satisfactorily address them until the issue of her residence is resolved and the parental issues are addressed. There is little point in the Court assuming there will be any change in the husband’s attitude to the wife and to her parenting.
58. Guest J. was prescient in his assessment that [the child’s] future happiness rested upon how the husband approached his parental responsibilities after that trial. The husband has not been able to accept the analysis and findings made by Guest J.; to the contrary, he has continued the internecine warfare and it has been destructive of [the child’s] best interests. Considering the report of Ms. [H] and the affidavit sworn by the husband, the Court can come to no conclusion other than that his negative attitudes have continued unabated since the earlier trial and will remain unabated. I place weight on Ms. [H’s] opinion that if that were found to be the case, there would be considerable concern for [the child’s] future emotional wellbeing.
59. It is probable nothing the Court can do will stop the husband continuing to discuss her residence with [the child], continuing to criticise her mother and seeking to glean shreds of information which can be interpreted in a way adverse to the wife. Similarly, when she is with him there may be little the Court can do to stop her being exposed to his negativity towards her mother which creates additional emotional stresses for [the child]. However, if the periods of contact were less frequent [the child] would have time to utilise the psychological space referred to by Ms. [H] and limit her subjection to the untenable emotional process to which she has been exposed.”
Her Honour then dealt with s 68F(2)(d) and said:
“60. The orders proposed by the wife in her application provided for her to pay the costs of travel between Port Augusta and Melbourne. Although her counsel briefly considered a different proposal, at the end of the hearing the orders sought by him on her behalf provided for her to bear that expense.
61. The husband alleged that [the child] had been ill on each occasion she travelled to Adelaide, however she said nothing of that to Ms. [H] when discussing her responses to the prospect of a move.”
As to paragraph (e) of s 68F(2) her Honour did not accept the husband’s allegations of the wife’s neglectful parenting. A number of the allegations were put to the wife and her Honour said that she accepted the wife’s evidence in response. Her Honour was concerned with the effect on the child of the husband’s hostility towards the wife and said:
“72. It is true that a move to Port Augusta will impact significantly on the amount of day to day contact the husband has with [the child]. However, it is submitted that one reason the proposal advanced by the mother is likely to advance [the child’s] interests, is the fact that a move, whilst maintaining the relationship between [the child] and her father, can provide the necessary psychological space for [the child] to stop her continuing subjection to entirely unacceptable emotional pressure. The consequences of any change must be speculative, but on balance I find it far more probable that the reduction in contact will be of overall benefit to [the child], and that the nature of her relationship with her father is such that it will not be damaged as he fears.
73. I do take into account the distress the husband is likely to feel; the impact of orders on a parent is a matter to which the Court can have regard. However, the weight of evidence supports a finding that living with her mother in Port Augusta is likely to foster and advance [the child’s] best interests in that it will allow her to resolve the emotional and behavioural problems she is experiencing whilst enmeshed in the situation here in Melbourne.”
Her Honour found s 68F(2)(f) to be irrelevant.
In relation to s 68F(2)(g) her Honour first said that as the husband submitted before Guest J. the child has been subjected to abusive behaviour and ill-treatment by the wife. Her Honour identified 15 complaints the husband had made in his affidavit. Her Honour said:
“76. First, a number of these complaints (like being first at school, and things recalled from long in the past) are risible. Second, neither individually or collectively would they warrant a change of residence in this case. Third, [the child] complained of no ill-treatment or neglect by her mother when seen by Ms. [H], and Ms. [H] did not report any stress in their interaction.
…
78. Ms. [H] made it very clear that the husband was acting irresponsibly in allowing and encouraging [the child] to go to bed very late and sleeping in the following morning. I accept her opinion that he has allowed [the child] to stay up considerably too late for a child of her age on contact visits, and that whilst a young child can cope with the occasional late night, it is not desirable for a child to regularly keep the hours that [the child] does on contact weekends...
79. Thus the only real complaint of [the child’s] is one that is unsurprising, and results from her father’s irresponsible parenting, not her mother’s. The triviality of some of these complaints is readily apparent and I am not satisfied that any of the evidence supports a finding that the wife has subjected [the child] to inappropriate behaviour or treatment.”
Her Honour then considered s 68F(2)(h) and said:
“80. I must find that the husband has not moved on since the trial before Guest J. and appears to be as focused now on his hostility, anger and contempt as he was then. He has no respect for the wife’s parenting and no respect for her as a person. It is probable he has made little secret of his negativity and that [the child] is well aware of it. Whilst I do not doubt that he loves [the child], the husband is prepared to sacrifice her wellbeing to his continuing feud with the wife. His affidavit was sworn well after Ms. [H’s] report was released. That report had as little impact on him as the reasons for judgment of Guest J. in 1999. It is improbable he will be able to adopt a more responsible attitude to his parenting responsibilities.
81. An aspect of parental responsibility is financially supporting children. The husband has made few contributions to [the child’s] support, save for periods when she is physically with him, or when forced to by Court order. His failure to do so means that it is the wife who carries responsibility for supporting [the child]. In these circumstances it is legitimate for her to seek better paid employment, from which to support [the child] and herself.”
Her Honour then considered ss 68F(2)(i) and (j) and said:
“83. The husband submitted that the mother has physically assaulted him in the child’s presence on several occasions in the past when [the child] was quite young. This is contrary to [the child’s] remarks to Ms. [H]. When asked about her parents’ conflict, [the child] recalled a big fight between her parents at Christmas when she was three and that her father kicked her mother. I am not satisfied this has been a relevant issue for many years.”
Her Honour found s 68F(2)(k) to be of significance. She said:
“84. …In his summary of argument the husband placed responsibility for the continuing legal proceedings on the wife and her legal representatives. Having regard to the history of the applications in this Court, that is a breathtaking submission. The husband made it clear to Ms. [H] that he had always intended to reapply for [the child’s] residence and maintained the position that the decision of Guest J. was wrong and the judge was biased against him.
85. Certainly, these proceedings were initiated by the wife and she has initiated other applications, including some aimed at obtaining child support and enforcing costs orders. But the bulk of the litigation has been initiated by the husband…
Her Honour then identified aspects of the litigation including outstanding applications and noted that four family reports have been prepared. She then said:
“90. The expert evidence of Ms. [H] is the expert evidence on which I rely. I refer to these earlier reports to illustrate the number of times [the child] has been interviewed and assessed, the persistent nature of the husband’s concerns and the probability that no determination (save the one sought by him) will deflect him from continuing litigation. To the extent possible, [the child] needs to be protected from this.”
Finally in relation to s 68F(2)(l) her Honour took into account the fact that:
“91. The husband’s litigious attitude is unrelenting and oppressive. It does not appear to be mitigated by him reading of the adverse affects on [the child] of the continuing litigation and her sense of pressure…
92. …I place weight on the history of litigation and its oppressive impact on the wife, both emotional and financial. Costs orders have not deflected the flow; they simply remain unpaid.
93. Guest J. found the wife to be an excellent mother. I am satisfied she has continued to foster [the child’s] interests in that role and acted responsibly as a parent. The effect on the resident parent of continuing litigation is a matter to which the Court can have regard.”
Her Honour then gave the following conclusion:
“94. Nothing in the evidence satisfies me that [the child’s] best interest would be met by moving her place of residence to her father’s home. It is probable the difficulties she has been experiencing at school are directly attributable to the pressure and tension she is experiencing as a result of the legal proceedings and parental conflict, and that a move to live with her father would do nothing to ameliorate that problem and much to exacerbate it.
95. I am satisfied that the wife’s reasons for relocating are genuine and legitimate. In Port Augusta she and [the child] will be more financially secure. She has appropriate accommodation, and appropriate schooling has been arranged.
…
97. Importantly, having regard to the pressure described by Ms. [H], the move will give [the child] the psychological space necessary to thrive.
98. These and other factors favour implementation of the wife’s proposal. The wife has been [the child’s] primary carer for years and I have found no substance in the allegations of the husband which relate to the quality of the care or the nature of [the child’s] attachment with her mother. Financial security is important, particularly where the resident parent cannot expect any reasonable level of child support, as I am satisfied will be the case so long as [the child] lives with the wife.”
Her Honour then indicated the orders she proposed to make.
Applications
At the commencement of the hearing before us the husband made three applications. First, at the commencement of the hearing before her Honour she granted leave to inspect documents produced in answer to subpoena. Her Honour was told that the subpoena had not been issued within a time specified and thus when they came before a Deputy Registrar, the Deputy Registrar adjourned the issue of inspection of the documents to the trial Judge. The husband sought to adduce evidence that demonstrated that the subpoena were issued within the specified time, that what her Honour was told was a lie, and that this was further evidence that the wife and her lawyers deliberately lie in court.
The next application was that the transcript of the second ex-tempore judgment delivered by her Honour on 2 February 2004 be obtained because she later included material dealing with the principles to be applied in relocation cases. An application was filed by the husband on 13 April 2004 and supported by an affidavit sworn by the husband on 9 April 2004. The third application was to place before us an affidavit sworn by the wife on 15 July 2003.
We dismissed all three applications and said that we would later give reasons.
The first application was dismissed because in our view it was irrelevant. Even if an error was made in relation to whether or not the subpoena were issued within the specified time it does not demonstrate what the husband contends for. The second application was dismissed because the husband had no evidence to support his contention and in any event we do not believe the issue raised is material. The third application was dismissed because the husband did not demonstrate how any material difference between the affidavit of the wife read before her Honour and the earlier affidavit was relevant to any of the grounds of appeal. The wife and the Child Representative were also not given notice of the first and third applications.
During the hearing the husband made a further application to adduce evidence of school records which we will deal with shortly.
Grounds of Appeal
In the Notice of Appeal there are 50 grounds of appeal namely:
“1. There has been a denial of natural justice against the appellant father.
2. The trial judge displayed procedural unfairness against the appellant father.
3. The appellant father has been discriminated against by the presiding judge.
4. The presiding judge did not allow the entire evidence to be properly presented or tested.
5. The decision of the presiding judge was not based upon the entire evidence available at the hearing.
6. The presiding judge was misled and lied to by counsel for the mother.
7. The presiding judge ignored the application for an adjournment made by the appellant father and contained in correspondence material that had been asked to be directed to the attention of the presiding judge.
8. There has been a denial of natural justice against the child…born…March 1995…
9. The child was denied her rights under the United Nations Convention on the Rights of the Child.
10. The child representative failed in his duties to both the child and to the court, thus denying the presiding judge material and evidence that was directly relevant to the issues which were before the court.
11. The child representative deliberately withheld material and evidence that was directly relevant to the issues which were before the court.
12. The child representative's gross negligence and incompetence, combined with the collusion with the mother's counsel and representative, resulted in the child being denied proper and adequate representation.
13. The presiding judge erred in accepting the submissions from the child representative regarding any statements allegedly made by the appellant father during any telephone conversation that may have taken place.
14. The presiding judge erred in her judgement when stating that the matter had been called at 10:00am and that the appellant father could have delayed his travel by an hour.
15. The presiding judge erred in her judgement when stating that the chronology of legal proceedings "...gave a strong sense of the entrenchment of the husband in litigious mode".
16. The presiding judge erred in accepting the Family Report prepared by [Ms H], which contained errors of fact.
17. The presiding judge erred in stating that she had regard to "...evidence of [the child’s] emotional state...".
18. The presiding judge erred in accepting submissions from the child representative that the matter should be heard in the father's absence.
19. The presiding judge erred in her judgement regarding cost orders in stating that "...but most remain outstanding despite attempts to enforce them ".
20. The presiding judge erred in her judgement when stating, regarding the mother, that "...the litigation pursued by the husband has resulted in an enormous financial burden on her".
21. The presiding judge erred in her judgement when stating, regarding the mother, that "...the employment available in Port Augusta would ensure financial stability and security for [the child]".
22. The presiding judge erred in accepting that the mother had "...a number of friends in Port Augusta...".
23. The presiding judge erred in stating that the reasons for judgement of Guest J of 3 December 1999 "...are a convenient stating point for the context in which these applications should be seen".
24. The presiding judge erred in accepting submissions from the child representative that the mother answered frankly and responsibly in respect of all matters put to her.
25. The presiding judge erred in accepting as fact statements made by [Ms H] in the Family Report without having those statements tested via cross-examination, which would have proved those statements to be false.
26. The presiding judge erred in stating that the appellant father has made allegations that the child has asthma.
27. The presiding judge erred in placing weight on the report prepared by [Ms H].
28. The presiding judge erred in stating that "...the only objective evidence of [the child’s] wishes is that contained in Ms. [H’s] report ".
29. The presiding judge erred in asserting, in paragraph 52 of the second judgement, that the appellant father had interpreted past orders in a certain way.
30. The presiding judge erred in stating, in relation to the child, in paragraph 56 of the second judgement, that the appellant father was "...encouraging her to move to live with him...".
31. The presiding judge erred in making finding which were either not supported by evidence or were based on untested statements and submissions on behalf of the mother.
32. The presiding judge erred making false statements as to what the appellant father was alleging, such as in paragraph 63 of the second judgement.
33. The presiding judge erred in relying upon the judgement of Guest J of 3 December 1999.
34. The presiding judge erred in accepting unsubstantiated statements made by the mother that the child found the father's presence at her school distressing and obstructive.
35. The presiding judge erred in making a finding that the relocation would be in the best interest of the child.
36. The presiding judge erred in treating the appellant father's examples of the mother's physical, emotional and mental mistreatment of the child as trivial.
37. The presiding judge failed to give proper weight to evidence in the appellant father's material.
38. The presiding judge failed to have the child's best interest as paramount.
39. The presiding judge erred in stating that the appellant father had made few contributions to [the child’s] support.
40. The presiding judge failed to properly follow the established guidelines in relation to relocation matters and failed to properly address all relevant matters in relation to section 68F of the Family Law Act.
41. The presiding judge erred in stating the number of times that [the child] had been interviewed and assessed.
42. The presiding judge was biased against the appellant father and had prejudged the matter in the father's absence.
43. The presiding judge erred when implying that the child did not have any final orders.
44. The presiding judge has made errors of facts.
45. The presiding judge acted under a misapprehension of facts.
46. The presiding judge erred in giving weight to irrelevant or unproved matters.
47. The presiding judge erred by failing to take into account matters that are relevant.
48. The failure of the presiding judge to consider all relevant evidence has resulted in a miscarriage of justice.
49. The manner of the conduct of the hearing by the presiding judge gave rise to a miscarriage of justice.
50. The presiding judge erred in not having the evidence or submissions of the mother or [Ms H] properly and impartially tested.”
In his written summary of argument, which comprises 78 paragraphs, the husband did not address seriatim the grounds of appeal. The paragraphs in the written summary do not correspond with the grounds of appeal. In fact, in the written summary the husband made no specific reference to any of the grounds of appeal. The submissions appear under the following relevant headings ‘The Hearing of 2 February 2004’, ‘The First Judgement of 2 February 2004’, ‘The Second Judgement of 2 February 2004’, ‘The Family Report’, ‘The Child Representative’ and ‘Conclusions’.
The basis of appeal is either that the judgment below was given in error or that, although there was no error, the interests of justice require that the judgment not stand. In Norbis v Norbis (1986) 161 CLR 513 at 518-19 Mason and Deane JJ. said:
“According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.”
A new trial may however be granted to prevent a miscarriage of justice notwithstanding the absence of error in the conduct of proceedings at trial.
Where error in the judgment of the Court below is alleged, deciding whether in the particular case an appropriate ground of appeal exists involves consideration of the nature of the question the determination of which, erroneously it is argued, produced the judgment. A question, the proper determination of which is the subject of appeal may be a question of law, a question of fact or a question of the proper exercise of a discretion to make or not to make an order.
A new trial may be ordered where that is essential to the justice of the case. However, an order for a new trial imposes an oppressive burden on a party successful at trial and the principles upon which an appellate court proceeds in granting the remedy have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest that there be an end to litigation: Commonwealth Bank of Australia v Quade and Others (1991) 178 CLR 134 at 141-142 per Mason CJ., Deane, Dawson, Toohey and Guadron JJ. The grounds upon which an appellate court may grant a new trial include an error by a judge in admitting or rejecting evidence, refusing to allow an adjournment or bias by a judge.
In this case there are a significant number of grounds of appeal in the Notice of Appeal in respect of which it is not possible to ascertain what the error complained of is. For example in ground 43 it is contended: “That the presiding judge erred when implying that the child did not have any final orders.” There is then ground 44 in which it is simply contended: “The presiding judge has made errors of facts.” No application was made by the husband to amend the grounds of appeal and we do not propose to treat the written summary as raising further grounds of appeal. In so far as the written summary may be said to identify particulars of the grounds of appeal no attempt was made by the husband in the written summary to cross-reference any portion of the summary to the grounds of appeal. We did receive a document in which an attempt was made to cross reference the paragraphs in the written summary to the grounds of appeal. For example, paragraphs 7, 8, 9, 11, 71 and 72 of the written summary are said to relate to ground one.
The difficulties with this appeal are exacerbated by the written summary. For example in para 27 of the written summary it is contended that the wife’s counsel: “…consciously and deliberately lied to the court from the beginning of the hearing. He made false statements knowing them to be false and deliberately lied to and misled Her Honour. Any statement made by Mr W would therefore need to be either disregarded entirely or heavily questioned. Secondly, the submissions have little coherence and further contain false and unsubstantiated statements.” These submissions may relate to ground 6 in which it is stated: “The presiding judge was misled and lied to by counsel for the mother.” In the document we received during the hearing it is contended that paragraphs 5, 6, 14, 15 and 27 relate to ground 6. We note that we are unable to ascertain how what is said in paragraph 15 of the written summary could possibly relate to ground 6. There remains the difficulty of ascertaining what is contended to be an error by the trial Judge or miscarriage of justice.
In all the circumstances, we do not propose to deal with each of the grounds of appeal or each of the paragraphs of the written summary.
It may be possible to group the relevant grounds of appeal in the following way:
-Grounds based on procedural unfairness
-Grounds based on judicial bias
-Grounds relating to the conduct of the Child Representative
-Grounds based on errors of fact
-Grounds based on errors of law
However, many of the grounds overlap. For example, in ground 44 it is contended that; “The presiding judge has made errors of fact” followed by ground 45 in which it is contended: “The presiding judge acted under a misapprehension of facts.” As well, there are grounds with no particulars provided.
In all the circumstances, it seems to us that it is in the interests of convenience and conciseness, that in so far as we are able to the grounds should be dealt with in a grouping of issues.
Procedural Fairness
In our view, a significant matter complained about by the husband is that the trial Judge proceeded to hear and determine the applications to finality in his absence. This complaint is apparent from consideration of grounds 1, 2, 7, 8, 18, 25, 31, 49 and 50.
The husband had at all times participated in the litigation with respect to the parenting of the child. At the conclusion of the hearing, in which the husband did not directly participate, final orders were made which enabled the wife to reside in South Australia with the child.
The many grounds relating to this issue all arise from the ex parte nature of the trial, as the matter proceeded in the husband’s absence. Therefore the husband claims that he was denied natural justice and suffered procedural unfairness, and that the judge took into account evidence of the wife and the counsellor that was untested in cross-examination.
In most jurisdictions, the respective rules of court either allow for the entry of a default judgment against a party who does not attend at the trial or provide for the matter to proceed in the absence of that party. In various jurisdictions there are rules of court which deal with the procedure where there is non-appearance by the plaintiff, non-appearance by the defendant or non-appearance by any party. The rules of court expressly confer power to set aside or vary a default judgment entered at the trial. Generally, if failure to attend at the trial is through no fault of the absent party, any resultant default judgment will be set aside.
There is provision in the Family Law Rules 2004 (“the Rules”) which deals with the circumstances of the failure of a party to attend at the trial. Rule 16.11 of the Rules provides:
“16.11(1)If a party does not attend when a trial starts, the other party may seek the orders sought in that party's application by, if necessary, adducing evidence to establish an entitlement to those orders.
16.11(2)If no party attends, the court may dismiss all applications.”
In this case the husband did not attend and the wife and the Child Representative sought that the hearing proceed and the trial Judge determined that it should.
The husband however had sought to vacate the trial dates. He wrote letters to the Court seeking that the trial dates be vacated because he would be in Sydney. The trial Judge did not proceed to summarily dismiss the husband’s response or enter what could be called a default judgment. What her Honour did was consider what the husband had asked for namely determine whether the trial should proceed in his absence. Her Honour determined that the trial should proceed. Thus it is clear to us that what her Honour did, albeit in the absence of the husband, was deal with the husband’s request that the hearing either be returned to the originally listed date of 9 February or a date after 23 February 2004.
The erroneous refusal of a trial judge to grant an adjournment may constitute a ground of appeal by the party who requested the adjournment. If the proceedings have terminated, and the outcome was adverse to that party then that party will apply for a new trial on the basis that the refusal of an adjournment deprived that party of a hearing on the merits. This is, in essence, what the husband complains of in this case. In ground 7 of the Notice of Appeal the husband contends that the trial Judge ignored the application for an adjournment by him in correspondence. In paragraph 12 of the written summary he contends that: “When he became aware that the trial date had been altered without consultation, consent or good reason, attempts were made to have the matter placed back to the original schedule so that he may attend the hearing to present evidence and cross-examine both the mother and all other witnesses”. Also in paragraph 29 of the written summary he contends that the Rules of Court allow matters to proceed without undue formality and that: “…an application for the rescheduling of the hearing was before the court.” We note that this is the only paragraph in the written summary that the husband says is in support of ground 7.
Whether to adjourn a trial is a matter in the discretion of the trial judge and an appellate court will rarely interfere with a decision refusing to grant an adjournment. However, it will do so if the exercise of discretion was erroneous and has resulted in a denial of natural justice. Parties should be able to present their case as fully as necessary and within the limits of what the law allows. Refusal of an adjournment which prevents the party seeking to present his or her claim might, in some circumstances, constitute an injustice.
In this case, the question is whether the trial Judge was in error in the exercise of her discretion in deciding to proceed to hear and determine the applications for final orders in circumstances where the husband did not appear and, albeit only in letters, had sought an adjournment. Further, has there been a miscarriage of justice.
In [W] and [C] [1999] FamCA 1952 the father appealed against the decision of Carter J. to make final parenting orders after the father withdrew from the proceedings during the course of the trial. During the hearing the trial Judge refused various applications by the father for an adjournment and the father informed her Honour that he wished to withdraw and would not consent to any orders being made. There had already been considerable litigation between the parties in the Family Court and her Honour noted that the case had been before the court “…on many occasions” and that it was in the interests of the child that the hearing proceed. She also noted that it was not possible to adjourn and resume in a week as other matters were already listed. The Full Court (Nicholson CJ., Kay and O’Ryan JJ.) dismissed the appeal and held that the trial Judge took proper account of relevant factors including the best interests of the child – the trial Judge’s discretion did not miscarry in refusing the adjournment. This case explored the issue of the discretion of the trial Judge to refuse to grant an adjournment as follows:
“67.The father also complains about her Honour's refusal of his application for an adjournment. In Scheibner-Grover and Ryan (1987) FLC 91-833 an application was made by the wife to vary an existing custody order to enable her to remove the child of the marriage from Australia to the United States where she had been granted a visiting chair as a professor at a university for 2 to 5 years. The husband then sought custody of the child. The matter came before the Trial Judge in relation to an argument concerning a subpoena and after dealing with this argument the Trial Judge fixed the hearing of the matter for 2.00 pm on the same day. The husband was not present in Court at the time because his present wife was having a baby. The husband’s counsel sought an adjournment and advised the Court that the husband wished to file an affidavit from a child psychiatrist. The Trial Judge refused to granted (sic) the adjournment and made orders allowing the wife to take the child to the United States. The husband appealed to the Full Court on the ground that the Trial Judge’s insistence that the hearing be fixed on less than 3 hours notice, and his subsequent refusal to grant an adjournment, amounted to a denial of natural justice. The Full Court allowed the appeal.
68. The Full Court (at p.76,266) referred to the judgment of Mason J in Taylor v Taylor (1979) FLC 90-674 where he said at p.78,596:
“The Full Court should then have approached the case on the footing that it was prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case. As Jenkins L.J. said in Grimshaw v Dunbar [1953] 1Q.B. 408, at p.146:
‘…a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the Court and present his case – no doubt on suitable terms as to costs, as was recognised in Dick v Piller [1943] K.B. 497.’”
69. In Schreibner-Grover and Ryan [supra] the listing was only for the purpose of hearing argument in relation to a subpoena and there was no requirement for the husband to be present. Further, the Full Court held that the husband would have no expectation that the case would be heard on the day. The Full Court held that once there was reasonable opposition raised to having the case heard on less than three hours notice there was no option but to grant the adjournment. The circumstances that existed in that case are very different to those in this case.
70. In Squire v Rogers (1979) 27 ALR 330, Deane J said at p.337:
“The question whether an application for adjournment of a matter should be granted or refused is a matter within the discretion of the trial judge to be resolved according to the overall requirements of justice in the particular circumstances: Conroy v Conroy [1917] 17 SR (NSW) 680 at 682. Its resolution may involve the assessment of competing claims by litigants in other cases awaiting hearing in the list of the particular judge or the particular court and may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of dates fixed for hearing. A court of appeal will not, as a general rule, interfere with a decision of a Judge at first instance on that question unless it is satisfied that the exercise of his discretion is miscarried in the sense that it has been affected by the wrongful application of principle or misunderstanding or erroneous assessment of the factual material before him. This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal – and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion.”
71. As a general principle proceedings that are listed by a proper process should be heard and determined at the time fixed for the trial: Dawson v D.C.T (1984) 71 F.L.R 364 at 374-375 per Legoe J. However, the court does have power to adjourn the hearing of a case in order to do justice between the parties. The granting of an adjournment is a matter of discretion and would ordinarily be granted where there is a proper basis for the application and refusal would seriously prejudice a party, at least where an adjournment would not prejudice the other party.
72. In this case her Honour dealt with the applications by the father for an adjournment. The application was opposed by the mother and the child representative. Her Honour was aware of the extent of litigation between the parties. She said that there would be difficulties in the hearing resuming the following week. Further, and importantly, she took into account that it was in the best interests of the child that the hearing proceed. The father, in our opinion, did not put forward a proper basis for the application and was unable to demonstrate any prejudice he would suffer if the application were refused. In all the circumstances of this case, we are not satisfied that the exercise of discretion by her Honour miscarried in the sense that is was affected by the wrongful application of principal or misunderstanding or erroneous assessment of the factual material before her.
73. Further, we are of the opinion that there has not been a denial of natural justice or that her Honour exercised her discretion upon wrong principle. The father was give very (sic) opportunity by her Honour to present his case. Importantly, for reasons that he never explained, the father chose to withdraw from participation in the proceedings notwithstanding that her Honour made very clear to him, and he understood, that her Honour would conclude the hearing and that orders may be made.”
In this case the husband was aware of the trial dates and had by correspondence sought that it be vacated. Before Bell J. on 19 January 2004 the husband was given leave to file an application to vacate the trial. His Honour made this order because the husband was prevented from making any application without leave being first obtained as a result of orders made on 30 August 2000. Subsequent to August 2000 the husband had made a number of applications for leave to institute proceedings. We accept that in the circumstances of this case the restraint imposed by the orders of 30 August 2000 did not prevent or should not have applied to any procedural application in respect of the trial fixed for 2 February 2004. However, what is clear is that Bell J. contemplated that although the husband did not succeed before his Honour, if the husband pursued an application to vacate the trial then he should have filed an application and given notice to the wife and the Child Representative. Further, the husband should have supported the application with evidence to enable the wife, the Child Representative and the Court to properly assess the issues contended for in support of the application. However, the husband chose not to do so. He chose to simply write to the Court in the expectation that such correspondence would either achieve the desired outcome or perhaps provide him with an opportunity for further litigation.
In our view, what the husband should have done is supported by r 16.12 of the Rules which deals with applications to vacate a trial. It provides:
“16.12(1)A party seeking to vacate a trial date must apply to do so at the earliest possible time before the date fixed for trial.
16.12(2)Both parties must attend the hearing of the application.
16.12(3)A trial may only be vacated:
(a)by order of a Judge or Judicial Registrar; and
(b)in exceptional circumstances.”
No submissions were made by the husband in relation to this rule.
Her Honour, correctly in our view, treated the husband as experienced with family law litigation and the practice and procedure of the Court. We note that the husband does not contend that that he was ignorant of the practice and procedure. The husband does not complain about the order of Bell J. The husband was expressly given leave to make an application to vacate the trial dates. This alone may be sufficient reason to dispose of this complaint. The failure of the husband to file an application and supporting evidence and attend at a hearing of the application deprived the wife and the Child Representative of the opportunity to contest the reasons why an adjournment should be granted. The wife and the Child Representative were deprived of the opportunity to ask the husband questions about why the trial should be vacated. In the letters the husband said that he would be in Sydney to meet with prospective clients and that securing contracts is vital as it is his only source of generating income. It is understandable why the wife may seek to examine the husband about why he had to go to Sydney given she contends he pays no child support.
The trial Judge also took into account the significant and protracted litigation experienced by the parties in relation to the child. This litigation has obviously had significant emotional and financial consequences for the parties and in particular the wife. Her Honour was concerned to ensure that a continuation of this experience should, if possible, be avoided. In this case there was also a public interest in having the trial continue and the litigation finalised given the amount of past litigation.
The trial Judge also took into account the effect on the child of the litigation and the conflict between the parties. Her Honour had the evidence of the Counsellor and was satisfied that the child was experiencing problems which she would not be able to satisfactorily address until the issue of residence was resolved and the parental issues addressed. The trial Judge, in our view correctly, came to the conclusion that it was in the best interests of the child that the hearing proceed.
In all the circumstances, we are not satisfied that the exercise of discretion by her Honour miscarried in the sense that it was affected by the wrongful application of principle or that she misunderstood or made an erroneous assessment of the material before her. We are also of the opinion, that there has not been a miscarriage of natural justice.
The absence of the husband meant that he was unable to cross-examine the wife and the counsellor, tender any evidence and make submissions. However, as it transpired, the trial Judge had before her all the evidence in chief of the parties and notwithstanding the absence of the husband she received his affidavits into evidence. The trial Judge allowed the wife to be cross-examined by counsel for the Child Representative and she was asked questions about some of the issues raised by the husband. Her Honour stated that:
“The husband has elected not to come to court. I did not strike out his response, and his affidavit and financial statement are part of the evidence before me. I take account of the matters raised in the summary of argument filed by him on 30 January, 2004. I also take account of the fact that by failing to appear he has not subjected himself to cross‑examination about the many allegations he makes against the wife, or his proposals. It is the wife who has been cross‑examined by counsel for the child representative, and I accept his submission that in respect of all matters put to her she answered frankly and responsibly.”
Her Honour clearly outlined in her first Judgment that the husband had ample opportunity to file an application to vacate the trial date but failed to do so. He also had an opportunity to appear at the trial but failed to do so. With this in mind her Honour decided to proceed in the husband’s absence given the evidence that the protracted nature of the proceedings is causing anxiety for the child who has been the subject of such litigation for most of her life. In our view, in this case there was no miscarriage of justice.
The first judgment characterised the husband as a fervent litigant. Yet the husband refused to file an application to vacate the trial date, and appeared nonchalant about the trial proceeding in his absence. The fact that he would rather appeal an ex parte order than pursue finality by attending the trial suggested to the trial Judge that he is more interested in litigation as a ‘game’ rather than pursuing parenting arrangements that are in the best interests of the child. He appeared to be oblivious to the anxiety that such continued litigation was causing the child.
We are thus of the view that these appeal grounds are without merit.
Bias
There are possibly two grounds which contend that there was judicial bias. In ground 3 the husband contends that he was discriminated against by the trial Judge and in ground 42 he contends that her Honour was biased. It is not entirely clear what the basis of these contentions is. In relation to ground 3 the husband relied upon paragraphs 71 and 73 of the written summary and as to ground 42 he relied upon paragraphs 9, 10, 11, 30, 31, 32, 34, 35, 40, 42, 47, 48, 50, 54, 57, 58, 59, 60, 61, 62, 63, 71, 72, 73, 74, 75 and 77. He identified more paragraphs of the written summary in relation to ground 42 than he did any other ground.
It may be that it can be assumed that the bias referred to is sourced in the ex parte nature of the hearing. By proceeding with the trial in the husband’s absence, the husband contends that the trial Judge was therefore biased by concentrating on the evidence of the wife and the counsellor which was not properly tested by cross-examination. The husband does not articulate whether he is complaining of actual bias or a reasonable apprehension of bias. However we shall proceed on the basis that the husband is complaining of the appearance of bias as he has not said anything in either the grounds of appeal, the written summary of his oral submissions that would suggest actual bias.
The test in relation to bias was set out in the majority judgment of the High Court in Johnson v Johnson (2000) 201 CLR 488. In that case, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. stated the test as follows (at para 11):
“…It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.” (footnote omitted).
Their Honours continued (at para 13):
“Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Dean and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate pre-judgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters of issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.” (footnotes omitted)
See also Re JLR; Ex parte CJL (1986) FLC 91-738 and Kennedy and Cahill (1995) FLC 92-605.
In relation to the first judgment in paragraph 34 of the written summary the husband submits that the trial Judge displayed hostility, prejudice and bias against him because of what she said about his failure to file an application. However, as we have already said her Honour did consider whether the hearing should proceed given the husband’s absence and his request that the trial dates be vacated. We do not accept the husband’s contention in paragraph 74 of the written summary that the trial Judge ignored the application for an adjournment. The husband’s failure to file an application meant that the wife and the Child Representative did not have the opportunity to deal with the issues raised by the husband’s requests.
In paragraph 48 of the written summary the husband alleges that her Honour was biased because of her finding in relation to the effect on the child of the litigation and conflict. There was however the evidence of the Counsellor which her Honour was entitled to accept.
We are not going to deal with all of what the husband said in the identified 27 paragraphs of the written summary. Consideration of her Honour’s judgments and the transcript lead us to the conclusion that a fair minded person would not come to the conclusion that her Honour had prejudged the case. Nothing has been put by the husband that persuades us that the parties or the public might entertain a reasonable apprehension that her Honour might not bring an impartial and unprejudiced mind to the resolution of the issues.
In the first Judgment her Honour explained the reasons for refusing to vacate the trial dates and in the second judgment gave reasons for the decision she reached. In our view, there is nothing that her Honour said or did that could give rise to any relevant perception of bias. Any grounds in which it is contended that there was judicial bias in the relevant sense must fail.
Conduct of the Child Representative
There are three grounds in which complaint is made by the husband about the role and conduct of the Child Representative. In ground 10 it is contended that the Child Representative failed in his duties to the Court and the child and in ground 11 that the Child Representative deliberately withheld material and evidence. We note that in ground 6 it is contended that counsel for the wife misled and lied to the trial Judge. In ground 12 it is contended that the Child Representative was grossly negligent and incompetent. The paragraphs of the written summary that are said to relate to these grounds are 25, 26 and 70.
In paragraph 70 of the written summary the husband has set out why he contends the Child Representative failed in his role. We note that complaints are also made about the Child Representative in paragraphs 8, 25, 26, 41 and 46 of the written summary. Again it is not clear to us how the complaints about the Child Representative demonstrate an appellate error by the trial Judge or a miscarriage of justice. However, we will address some of the complaints.
During the hearing before us the husband submitted that the school teachers were relevant witnesses and that the Child Representative should have called them. Further, that documents had been subpoenaed from the school and school counsellor and that this material was “suppressed” by the Child Representative. The husband contended that the documents were relevant to the wishes of the child and also revealed that she had run away from school. In paragraph 46 of the written summary the husband contends that there was evidence available to show the “desires and wishes” of the child which was contained in material subpoenaed by the Child Representative from the school and counsellors that the child was seeing. The husband contends that this evidence was deliberately withheld by the Child Representative. In paragraph 26 of the written summary the husband contends that the Child Representative had the child’s teacher and school vice principal as witnesses.
The Counsellor in the Family Report gave very detailed evidence about her observations of the child and conversations with her. The Counsellor dealt at some length with the wishes of the child and the child’s relationships with the parents. The Counsellor also spoke to the child’s school teacher and the Child and Adolescent and Mental Health Service. The wife was cross-examined by counsel for the Child Representative about problems the child had been having at school and her conferring with the Child and Adolescent and Mental Health Service.
The trial Judge did not refer to the subpoenaed material and there is no reference to it in the transcript. The husband made an oral application to place the material before us and we refused the application. We did so because he had not adequately explained how the material would have a bearing on what the wife and the Counsellor had said or the opinions of the Counsellor as to the wishes and desires of the child. Further, and importantly, the husband had failed to give notice to the wife and the Child Representative of his intention to seek to call this evidence. He failed to file an application at least 14 days before the hearing of the appeal as required by r 22.51 of the Rules.
Consideration of the transcript reveals that the Child Representative acted appropriately and in accordance with the relevant guidelines. Counsel for the Child Representative cross-examined the mother and made submissions that were consistent with the role of a child representative and directed to issues that related to the best interests of the child. There is no substance in the contention that the Child Representative was grossly negligent or incompetent.
In summary, in our view, there is no substance in any of the complaints about the Child Representative and thus the grounds which purport to rely upon them must fail. There has been no error by her Honour in relation to the role and conduct of the Child Representative and no miscarriage of justice.
Errors of fact
There are a number of grounds in respect of which it may be the husband contends that the trial Judge made an error of fact. So also in the written summary there are a number of assertions made that may be said to complain of an error of fact. Some of the complaints may relate to findings of fact upon conflicting testimony and some may depend on inferences from uncontroverted facts.
We do not propose to deal with each and every one of the contentions because in our view with some few exceptions we cannot ascertain precisely what error it is contended the trial Judge made. We will however, address some matters.
In ground 14 it is contended that the trial Judge was in error in stating that the matter had been called at 10.00 am and that the husband could have delayed his travel by an hour. In paragraph 31 of the written summary it is submitted that the trial was scheduled to commence at 11.00 am. Thus the finding by her Honour that the husband could have delayed his travel for an hour was incorrect and that if the husband had delayed his travel it would have caused delay until into the afternoon and this would have caused appointments for that evening to be missed.
A letter dated 29 December 2003 from the Court advising of the change of trial dates does state that the hearing would commence at 11.00 am and the transcript before us reveals that the hearing may have started at 11.10 am. However, we do not accept that this error was material in her Honour’s determination of the issue of whether or not the trial should be adjourned. What was important was that the husband had failed to make his application to vacate the trial dates prior to 2 February 2003 and there was no evidence in support of his application. He gave no evidence about appointments in Sydney on the evening of 2 February and he was not at court when the hearing commenced.
In ground 39 the husband complains that the trial Judge erred in stating that the husband had made few contributions to the support of the child. Paragraphs 42, 71, 74, 75 and 77 of the written summary are said to relate to this ground. We have considered what is said in these paragraphs and in our view, it is impossible to see how these ‘submissions’ relate to this ground. In paragraph 36 of the written summary the husband contends that her Honour was in error in finding that he pays no child support. However, in her affidavit the wife said that any child support paid by the husband has been by way of court order and in her financial statement as to income from maintenance/child support said “NIL”. In the husband’s financial statement in relation to the expense of maintenance/child support he said “NIL.”
In ground 19 it is contended that the trial Judge was in error in stating that most costs orders remain outstanding despite attempts to enforce them. Paragraphs 36, 42, 71, 74, 75 and 77 of the written summary are said to relate to this ground. In paragraph 36 of the written summary the husband submits that the costs orders are to be taxed and therefore cannot be enforced and thus her Honour was in error in relation to her finding that most costs orders remain outstanding despite attempts to enforce them. The trial Judge was well aware that taxation in respect of outstanding costs was still in some instances to occur. She referred to this specifically in paragraph 82 of her reasons. In that paragraph she also referred to a chronology which she said referred to a number of costs orders. That chronology would not appear to be included in the appeal book but a summary of argument filed by the mother on 30 January 2004 is included and contains at least one reference to an application to enforce costs (on 7 November 2001) a reference to an application by the husband seeking review of a costs certificate (filed December 2001) and a reference to a Notice Disputing Costs filed by the husband on 26 March 2002. In this context, we do not consider that the statement made by the trial Judge in paragraph 2 of her reasons, namely "a number of costs orders have been made in her favour, but most remain outstanding despite attempts to enforce them." amounts to an erroneous finding of fact. The term "attempts to enforce" need not necessarily refer to specific applications, but rather to various steps in pursuit of payment.
In ground 22 the husband complains that the trial Judge erred in accepting that the wife had a number of friends in Port Augusta. This ground is said to be dealt with in paragraphs 14, 15, 16, 42, 71, 74, 75 and 77 of the written summary. However, in cross-examination the wife gave evidence that she has friends in Port Augusta (Appeal Book p 222) and in our view the trial Judge was entitled to make the finding she did. It is another example of the difficulties with this appeal in identifying the relevant error or miscarriage of justice and the submissions in support of the contentions.
In conclusion, the husband has failed to persuade us that there was any relevant errors of fact by the trial Judge and thus the grounds in which such a contention is made must fail.
Errors of law
In ground 40 the husband contends that the trial Judge failed to properly follow the established guidelines in relation to relocation cases and failed to properly address all relevant matters in relation to s 68F of the Act. This appears to be repeated in paragraph 42 of the written summary. The paragraphs of the written summary that are said to relate to this ground are 11, 29, 30, 35, 42, 71, 74, 75 and 76. It is difficult to ascertain after consideration of these paragraphs anything said that supports the ground.
Authoritative guidance on the approach to relocation cases is provided by A v A: Relocation Approach and the High Court decision in U v U (2002) FLC 93-112. Some of the important principles that are established by these authorities are that a trial judge is obliged to give careful consideration to the proposed arrangements of the parties, but is not bound by those proposals. Next, the court must consider the matters in s 68F(2). The objective is always to achieve what is in the best interests of the child. Further, it is an error to require demonstration by the party seeking to relocate of compelling reasons for the proposed relocation. Finally, the right to freedom of mobility of a parent must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by the movement of a parent.
In AMS v AIF at paragraph 150 Kirby J. said:
“…an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re‑exercised on a retrial.” [footnotes omitted]
As shown above the trial Judge cited the relevant case law regarding relocation. Her Honour clearly identified the competing proposals and then weighed the advantages and disadvantages of the competing proposals for the child’s best interests through her analysis of the s 68F(2) factors. Regarding the wife’s relocation proposal she noted as a major advantage the “psychological space” referred to in the Family Report which would reduce the child’s exposure to the hostility between her parents which has been causing her anxiety. Another advantage was the increased financial security and stability the child would enjoy due to the mother’s employment in Port Augusta, although the husband claims that the trial Judge erred in accepting this evidence. These advantages were weighed against the disadvantages of less contact with the husband with whom the child has a loving relationship. Also the trial Judge noted that there would be a change of school and a move away from the child’s friends, and the wife does not know many people in Port Augusta, although the judge accepted that she has friends there. Alternatively by moving in with the husband the child would still need to change schools although some of the children would be known to her and she would remain close to the husband’s family and friends that she knows. It is thus very clear that her Honour appropriately identified the proposals and considered the relevant statutory considerations and evidence, including the evidence of the husband. Important factors which her Honour considered included the reduction in contact with the husband and the psychological benefit to the child from relocating.
We are satisfied that her Honour did approach consideration of the issues by identifying and evaluating the competing proposals by reference to the matters set out in s 68F(2). Accordingly we are of the view that appeal grounds in which it is contended that there was an error of law are without any merit and must fail.
Conclusion
The effect of the matters we have discussed above leads us inexorably to the conclusion that no error or miscarriage of justice has been demonstrated by the husband and that the appeal should be dismissed. Her Honour's findings and decision in relation to the parenting of the child were clearly open to her on the evidence, as was her decision to hear the matter in the absence of the husband. We are satisfied her Honour was focussed on the best interests of the child and that in arriving at her decision she identified the competing proposals and properly evaluated them having regard to the important statutory considerations set out in Part VII of the Act. We are of the view that no material error of the kind warranting disturbance of her Honour’s discretionary decision is established.
Orders
The appeal be dismissed.
I certify that the preceding 128 paragraphs are a
true copy of the reasons for judgment
delivered by this Honourable Full Court
Dated the 6th day of July 2005.
………………………………………………
Associate
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