Fairfax & Fairfax
[2021] FamCAFC 166
•27 August 2021
FAMILY COURT OF AUSTRALIA
Fairfax & Fairfax [2021] FamCAFC 166
Appeal from: FCCA Orders dated 27 January 2021 Appeal number(s): NOA 8 of 2021 File number(s): BRC 720 of 2020 Judgment of: TREE J Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders suspending the children’s time with the mother – Where the appeal is futile – Where subsequent orders were made for the mother to spend supervised time with the children – Where the findings and conclusions of the primary judge were open on the evidence – No error established – Appeal dismissed – No order as to costs.
FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the further evidence is not relevant to the appeal and does not establish error on the part of the primary judge – Application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 65DAA(3), 93A(2), 96
Family Law Rules 2004 (Cth) r 19.34
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
House v The King (1936) 55 CLR 499; [1936] HCA 40
Division: Appeal Division Number of paragraphs: 49 Date of hearing: 19 August 2021 Place: Cairns The Appellant: Litigant in person Counsel for the Respondent: Mr Gordon Solicitor for the Respondent: Best Wilson Buckley Family Law Counsel for the Independent Children's Lawyer: Mr McGregor Solicitor for the Independent Children's Lawyer: Wallace Perkins Family Law ORDERS
NOA 8 of 2021
BRC 720 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS FAIRFAX
Appellant
AND: MR FAIRFAX
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 13 August 2021 be dismissed.
2.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fairfax & Fairfax has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 27 January 2021, a Federal Circuit Court judge made interim orders that the parties’ four children live with Mr Fairfax (“the father”), that the previous orders providing for the children to spend time with Ms Fairfax (“the mother”) be suspended, and that a recovery order issue in relation to the children to return them to the father’s care. The primary judge also made orders that the father ensure the children continue to communicate with the mother by video call, and that the mother be restrained from removing or attempting to remove the children from the father’s care until further order. Finally there was an order made transferring the proceedings to the Family Court of Australia.
Apart from that latter order, the mother by her Amended Notice of Appeal filed 29 April 2021, appeals against the orders of the primary judge. The appeal is resisted by the father and the Independent Children's Lawyer (“ICL”).
For the reasons which follow, the appeal must be dismissed.
BACKGROUND
Both the mother and father are presently 44 years of age. They commenced cohabitation in 2004, married in 2006 and separated, albeit initially under one roof, in 2018. By then all four children had been born.
On 21 January 2020, the father commenced proceedings in the Federal Circuit Court of Australia, which proceedings ultimately encompassed both parenting and property matters.
During the currency of that litigation, various iterations of interim parenting orders have prevailed. As at the time of the hearing before the primary judge, the relevant interim orders provided that the parties have equal shared parental responsibility, and for the children to live with the father, but spend specified time with the mother.
Pursuant to those orders, the children went into the mother’s care on 4 December 2020 and were due to return to the father’s care on Christmas Day 2020. However the mother thereafter kept the children (although she claims that the father simply failed to attend to collect them), but whatever be the case, as at 27 January 2021, the children had not spent time with the father since 4 December 2020.
It was against that background that the father sought a recovery order for the children, and that the mother’s time with the children return to being supervised. That proposal was supported by the ICL. However whilst the primary judge made the recovery order, as has been noted, her Honour suspended the mother’s time with the children and transferred the matter to the Family Court of Australia. In the transcript of the hearing, which stands as the reasons for the orders, the primary judge said:
…I’m going to defer the matter of supervised time at the moment. Hopefully, the matter will be shortly received by a Justice of the Family Court and I am going to suspend the mother’s time until further order…
(Transcript 27 January 2021, p.8 lines 15–18)
Subsequently the mother brought this appeal, and on 30 March 2021 the primary judge heard the mother’s application for a stay of her orders of 27 January 2021. Whilst that application was refused, the primary judge then also made orders, pending the appeal, for the children to spend supervised time with the mother at specified times. Before me, no party raised any issue about the primary judge being able to make further interim parenting orders in proceedings which were no longer in the Federal Circuit Court of Australia, and hence I need say nothing more about that.
THE APPLICATION IN AN APPEAL
By Application in an Appeal filed 13 August 2021 the mother seeks to adduce further evidence in the appeal. She also seeks an extension of time to file her schedule of costs, which was not filed within the time imposed by the Appeal Registrar’s order.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) gives this Court a discretion to admit further evidence on appeal. That power is subject to s 96 but is otherwise unfettered by legislation.
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Relevant to appeals concerning parenting orders, the High Court went on:
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
The mother filed two affidavits on 13 August 2021 in conjunction with her Application in an Appeal to adduce further evidence. The first affidavit comprising 99 pages purports to reply to the submissions of the ICL made in her Summary of Argument filed 11 June 2021, and to that extent the affidavit annexes the following documents: a parenting plan proposed by the mother with a supporting affidavit sworn 19 July 2021; an undated affidavit of the mother purportedly filed in QCAT proceedings in relation to a costs dispute between the mother and her former lawyers; and a letter dated 28 July 2021 (including annexures) addressed to the Department of Justice and Attorney-General in relation to an application for a Blue Card exemption.
It is evident that each of the documents sought to be adduced all post-date the hearing before the primary judge. However it is not at all clear what their relevance is to the appeal, nor how they demonstrate error on the part of the primary judge.
The further affidavit will not be admitted.
The second affidavit of the mother filed in conjunction with her Application in an Appeal is principally directed towards matters relating to costs. However that part of the affidavit is a somewhat rambling discourse about the conduct of the proceedings to date, and the attached schedule is not calculated by reference to the relevant scale, and somewhat astoundingly, claims costs totalling $1,710,200.00. The schedule further seeks “damages sought as restitution” in the sum of $2,800,000.00.
Insofar as it seeks to lead additional evidence relevant to the substance of the appeal, the affidavit merely says “I wish to rely on this and my previous affidavits and further affidavits of further evidence.” Plainly no basis for the admission of any of that material is established.
The appellant’s Application in an Appeal filed 13 August 2021 will be dismissed, although I will allow her to rely upon the schedule of costs.
THE APPEAL GENERALLY
The appeal is from interim parenting orders. The Amended Notice of Appeal filed 29 April 2021 does not indicate whether leave to appeal is sought, although in that document, the previous iteration of the Notice of Appeal, which sought leave to appeal, has been varied by striking out the “X” next to the word “yes”. In any event, despite whatever ambiguity exists, leave to appeal is not required.
The appeal is brought from the exercise of a discretion. The constraints upon appellate interference with a discretionary decision are well known. In House v The King (1936) 55 CLR 499 (“House”) it was said at 504–505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Additionally, it must be said that generally the grounds of appeal in the Amended Notice of Appeal filed 29 April 2021 are not in fact proper grounds of appeal, and certainly do not engage with the principles in House. However I propose to address the challenges advanced under them as if they were properly cast grounds of appeal.
I should also note that unfortunately, the mother’s Summary of Argument extensively comprised a critique of the written reasons of the primary judge of 30 March 2021 for refusing the stay of her Honour’s 27 January 2021 orders. Whilst the mother contended in her oral submissions that that decision was somehow relevant to this appeal, plainly it was not.
Finally, I should note that in practical terms the appeal is futile. Not only is the mother presently in fact the beneficiary of subsequent orders permitting her to spend time with the children pending the appeal, but thereafter the matter which the primary judge reserved to the Family Court of Australia, namely the question of whether the mother’s time with the children should be supervised or not, will be able to be agitated by the mother. Indeed there was no impediment to her doing so even while the appeal was on foot.
However notwithstanding that futility, I will briefly consider the grounds of appeal.
Ground 1
This ground provides:
1.The Honourable Judge made error as there is no justification for the making of an order restricting and suspending any time spent together between the parent and child and ruling that the children cannot live with their Mother. There is not a single instance that exists between the Mother and her four children. Where the Mother has harmed the children or placed them at risk of harm or neglect whilst in her care nor by breaching orders and therefore no evidence of that occurring.
(As per the original)
The ex tempore reasons given by the primary judge for the suspension of the mother’s time were brief. Relevantly they provide:
The mother was very unhappy with the orders that were made by me following a pretty comprehensive hearing, interim hearing. There are two reports of some significance before me. I am concerned that these children have not attended school in the last term and have not attended school on a very important day, their first day back for the New Year, and I have confidence that, if I make an order for the children to be returned to their father’s care this afternoon, the mother will [not] comply with that order…
… I am satisfied on the evidence before me that, if the children are … returned to their father … they will not be at any risk of harm in the interim… I am satisfied that he will ensure the children attend school and ensure the children are supervised at all times…
(Transcript 27 January 2021, p.7 line 47 to p.8 line 15)
It seems tolerably clear that her Honour was satisfied that, whilst recently in the mother’s care, the children had not been attending school, both in 2020 and 2021, but that they would attend school if in the father’s care. It is therefore simply not correct to say, as this ground contends, that there was no articulated justification for making “an order restricting and suspending any time” between her and the children, as patently their education was a significant matter which, given recent events, militated against them being in the mother’s care. It is not to the point that the mother may not have ever harmed the children, placed them at a risk of harm, or neglected them; the primary judge was persuaded that she had not facilitated their attendance at school, but the father would. Further, no risk of harm attached to the children whilst in the father’s care. Both conclusions were well open to her Honour on the evidence.
Moreover it must be understood that the primary judge was suspending the mother’s time with the children in the anticipation that, upon the transfer of the matter to the Family Court of Australia, the question of the imposition of supervision of the children’s time with the mother and the like would be dealt with promptly. Therefore the anticipated time of “restriction and suspension” was very limited. That such did not apparently transpire does not speak to error by the primary judge. In any event, as I have said, there are now orders permitting the children to spend time with the mother.
There is no merit in this ground and it fails.
Ground 2
This ground provides as follows:
2.The Orders deny four children any time with their mother. There are no grounds for these orders that make an error in principle in that they deviate from section 65DAA(3) of the Family Law Act 1975 that it is in the best interests of children to spend substantial and significant time with each parent.
(As per the original)
This ground asserts that the primary judge failed to comply with the statutory direction in s 65DAA(3) of the Act, namely that she was obliged to consider, amongst other things, whether substantial and significant time with each parent was in the best interests of the children.
Whilst it would have been better if the primary judge had indeed referred to the relevant provisions which governed the discretion that she was about to exercise, it is plain that against the background of her Honour having undertaken a more extensive consideration of the interim parenting arrangements for these children on 28 January 2020, the 27 January 2021 orders were intended to be in the nature of very short term interim orders, pending the Family Court of Australia becoming seized of the matter and addressing the appropriate interim regime pending trial. It is apparent that the question of education loomed large in the primary judge’s mind and, inferentially, at least in the very short term, that issue determined that their best interests lay in their time with the mother being temporarily suspended. Therefore it is simply not correct to say that the primary judge did not consider the children’s best interests, but rather implicitly she determined that in the very short term, their best interests lay in them not spending substantial and significant time with the mother.
Again, in any event, I note that subsequently the primary judge has made further interim orders permitting the children to spend supervised time with the mother. True it is that those orders are expressed to be pending the appeal, but nonetheless, assuming they were implemented, the mother ought to have been spending time with the children over the last few months.
This ground has no merit and fails.
Ground 3
This ground provides as follows:
3.I did not remove or with-hold the four children from the other parent. I have been seeking a shared equal-time parenting arrangement from the outset. Self-represented, I was seeking agreement taking responsibility for parenting needs at hand in compliance to order 12 of the FCC Orders 28/01/2020: ‘The Parents are to consult with each other about decisions to be made in the exercise of their shared responsibility as follows: a) they shall inform the other parent about the decision to be made; b)they shall consult with each other on terms that they agree; c) they shall make a genuine effort to come to a joint decision’ and in accordance with section 63 B of [the Act].
(As per the original)
In order for this ground to succeed, the mother would need to demonstrate that the inferential finding by the primary judge, namely that the mother had been wrongfully retaining the children contrary to court order, was not reasonably open on the evidence, whereas plainly it was. It was expressly asserted by the father in his affidavit in support of the application, and the mother’s denial of it in her affidavit was fraught with difficulty, in that it seemed to tacitly concede that she had retained the children contrary to orders, but that doing so was in their best interests.
This ground of appeal has no merit and must fail.
Ground 8
This ground provides as follows:
8. The Court ignored the contentment of the four children enjoyed in the weeks over Christmas in the stable, happy care that had been provided by the Mother they now spend no time with by court-ruling and were stolen from by needless court-order, a deprivation of the basic human rights of child and parent.
(As per the original)
This ground appears to contend that the primary judge had no regard to the fact that the children had enjoyed their recent time with the mother, notwithstanding that it had been spent with her contrary to court orders. Whilst her Honour’s reasons are brief, there is no reason to think that she overlooked the mother’s submission and evidence that she has “kept the children in a stable base over the last eight weeks”. However given that the youngest child was, at the time, still six years of age, and the oldest only 13, the extent to which the children’s wishes, or indeed any alleged enjoyable experience they had whilst spending time with the mother was deserving of weight, was exquisitely a matter for her Honour.
There is no merit to this ground of appeal and it fails.
OUTCOME
No ground of appeal is established. The appeal must be dismissed.
COSTS
In the event that the appeal was dismissed, both the father and the ICL sought that the mother pay their costs.
Although not as badly infected, the father’s schedule of costs, which claimed at least $14,125.01, suffered from a related strain of the same disease as did the mother’s schedule. One only needs to recognise that it included no less than two and a half days of counsel’s preparation to appreciate that it was likely not prepared on a strictly party/party basis. That is to say, the amount of work claimed was likely in excess of that reasonably necessary to achieve justice in, and reasonably proportionate to, a self-represented litigant’s four ground appeal, arising from a proceeding where the entire transcript occupied only nine pages, and where there was no appeal book ordered (see r 19.34 of the Family Law Rules 2004 (Cth)).
The likely erroneous basis on which the schedule was prepared is also apparent from the fact that each claimed solicitor/client item is replicated in the party/party bill, a most unlikely coincidence.
The ICL’s schedule simply claimed an en globo amount of $4,424.09, which although seemingly reasonable, absent detail, was unable to be verified.
I do not propose to either, in effect, tax the father’s schedule, or guess the items in the ICL’s schedule. Of course, as counsel conceded, I could nonetheless fix an amount for both the respondent’s and ICL’s costs.
However, whilst the appeal was unsuccessful, the mother’s present financial circumstances are fraught, and the father’s are not. Whilst it may be likely that the mother is ultimately entitled to a significant property settlement, I cannot presently determine what range it might lie in. Therefore I am not attracted to making an order for costs, but deferring their recovery until the final property settlement.
I decline to make any order for costs.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 27 August 2021
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