Farrington & Belkis

[2024] FedCFamC1A 133

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Farrington & Belkis [2024] FedCFamC1A 133

Appeal from:

Farrington & Belkis (No 3) [2024] FedCFamC2F 660

Appeal number(s):

NAA 162 of 2024

File number:

CAC 924 of 2021

Judgment of:

AUSTIN J

Date of judgment:

8 August 2024

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Reinstatement – Where the applicant’s appeal was deemed abandoned following his failure to file the Draft Appeal Book Index – Where the applicant moved with commendable haste to seek re-instatement of the appeal – Where notwithstanding such haste the applicant’s grounds of appeal are unmeritorious – Where the applicant seeks to revive bias complaints made in a former appeal he voluntarily discontinued or subsequently waived – Where dissatisfaction with the result of the outcome of a trial does not manifest the deprivation of procedural fairness – Where no miscarriage of justice necessarily results from a witness remaining in Court before giving their evidence – Where the preference of the evidence given by one witness over that of another is an entirely unexceptional part of the judicial function – Application dismissed.  

Legislation:

Evidence Act 1995 (Cth) s 26

Family Law Act 1975 (Cth) Pt VII, ss 65D, 69ZT, 69ZX, 97

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 46

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 13.14, 13.38. 13.44

Cases cited:

Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Farrington & Belkis (No.2) [2023] FedCFamC2F 1343

Farrington & Belkis (No.3) [2024] FedCFamC2F 660

Farrington & Belkis [2023] FedCFamC2F 1076

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Moore v Lambeth County Court Registrar [1969] 1 All ER 782

Northern Territory of Australia v GPAO (1999) 196 CLR 553; [1999] HCA 8

Paschalidis v Shamsizadeh [2017] NSWSC 1186

Smits v Roach (2006) 227 CLR 423; [2006] HCA 36

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Number of paragraphs:

49

Date of hearing:

8 August 2024

Place:

Newcastle (via video link)

The Applicant:

Litigant in person

Solicitor for the Respondent:

Bevan & Co

The Independent Children's Lawyer:

Did not participate in the appeal

ORDERS

NAA 162 of 2024
CAC 924 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FARRINGTON

Applicant

AND:

MS BELKIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	8 AUGUST 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 30 July 2024 is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farrington & Belkis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 14 June 2024, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders to finally determine the cause of action between the parties in respect of their children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).

2. The applicant appealed from those orders on 1 July 2024, but then amended the appeal the next day. Pursuant to r 13.14(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the applicant had until 29 July 2024 to file his draft appeal book index. He failed to do so and, consequently, his appeal was deemed abandoned pursuant to operation of r 13.14(3) of the Rules.

3. The day after the abandonment, on 30 July 2024, the applicant filed an Application in an Appeal seeking an extension of time within which to file his draft appeal book index. The application was misconceived because there is no longer any appeal within which to grant an extension of time to perform the omitted procedural step. However, the applicant’s application will instead be treated as an application for re-instatement of the appeal pursuant to r 13.44 of the Rules.

4. For the reasons which follow, the application is dismissed.

   BACKGROUND

5. Final parenting orders were first made between the parties with their consent in September 2019, but the applicant recommenced proceedings in May 2021. Both parties conducted the new litigation on the basis that changes to the 2019 orders were necessary (at [39]).

6. The trial began in March 2023 and while part-heard, on 4 August 2023, the primary judge made interim orders providing for the children to live with the respondent and to have no contact with the applicant. His Honour gave ex tempore reasons for that interlocutory judgment (Farrington & Belkis [2023] FedCFamC2F 1076), from which there was no appeal. Following the pronouncement of the interim orders, the applicant applied to disqualify the primary judge from further participation in the litigation, but the application was dismissed on 19 October 2023 (Farrington & Belkis (No.2) [2023] FedCFamC2F 1343). The applicant did appeal that decision, but voluntarily discontinued the appeal about two weeks afterwards.

7. The evidence in the trial closed in December 2023, final submissions were made in March 2024 and judgment was delivered in June 2024 (Farrington & Belkis (No.3) [2024] FedCFamC2F 660). In summary, the final orders allocate the respondent with sole parental responsibility for the children (Order 3) and require them to live with her (Order 4). It was declared that the children spend no time with the applicant (Order 5) and he was restrained from contacting the children and their older sibling (Orders 6 and 7). In broad terms, those orders reflected the applications of the respondent, the Independent Children’s Lawyer (“the ICL”), and the child welfare agency, which agency had intervened in the proceedings (at [20] and [63]).

   LEGAL PRINCIPLES

8. The principles which apply to applications to re-instate appeals are not in doubt.

9. In Allan & Ors & Allan & Ors (2014) FLC 93-606, the Full Court said this:

   32.The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]–[46]; Bemert & Swallow (2010) FLC 93–441 at [128]–[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will “work an injustice upon the applicant”.

10. When an application is made for an extension of time within which to appeal, the merit of the intended appeal is pivotal. However, in cases like the present, where the default sought to be remedied instead relates to a failure to meet a time limit within a properly commenced appeal, the merit of the appeal is not the paramount consideration (Jackamarra v Krakouer (1998) 195 CLR 516 at [4], [7], [9], [33], [66] and [73]).

11. Nevertheless, the ostensible merit of the appeal remains a material consideration because an applicant seeking the re-instatement of the appeal will not genuinely suffer any injustice if refused permission to do so as an unmeritorious appeal, if re-instated, is liable to then be summarily dismissed for the lack of any reasonable prospect of success (ss 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“ the FCFCA Act”)).

12. Those principles govern the disposition of this application.

    DISCUSSION

13. The applicant requested that his application be determined in the parties’ absence in accordance with r 13.38 and Pt 5.3 of the Rules “in order to save court time and costs”, but it was instead listed for hearing on 8 August 2024 to give him every opportunity to be heard.

14. The re-instatement application is supported by the applicant’s affidavit filed on 30 July 2024, together with his lengthy written submissions filed on 7 August 2024, which he supplemented orally.

15. The applicant explained how he mistakenly calculated the draft appeal book index was due for filing on 30 July 2024 (being 28 days after the Amended Notice of Appeal was filed) rather than 29 July 2024 (being 28 days after the appeal was originally filed), which explanation is accepted. The applicant moved with commendable haste to re-instate the appeal and, were that the only material consideration, no prejudice could accrue to the respondent by the appeal’s re-instatement on account of such a short interlude of deemed abandonment. The respondent admitted as much.

16. However, such haste does not address the lack of merit evinced by the eight grounds of appeal, which consideration is dispositive because the respondent would be prejudiced by having to then meet an appeal which has no apparent merit when the applicant’s status as a self-represented litigant suggests he lacks the means to meet the respondent’s costs if the appeal is later substantively heard and dismissed.

17. The applicant properly conceded in his written submissions (at [1c] and 1d]) that “the prospects of [him] succeeding in the appeal” and “prejudice” to the parties were two of the material considerations influencing the outcome of his application, so attention turns to the grounds of appeal.

    Ground 1

18. Ground 1 asserts an apprehension of the primary judge’s bias supposedly arising from, first, his Honour’s “prejudgment” of unidentified “significant issues”, and secondly, things said and done by the primary judge throughout the proceedings.

19. As to the allegation of “prejudgment”, the alleged apprehension of bias cannot arise from reading the reasons delivered for the judgment because the reasons explain the considered judgment actually required of the primary judge and cannot possibly represent his Honour’s “prejudgment” of the issues in contest. If, alternatively, the claim of bias is premised upon judicial conduct up to and including the conclusion of the trial before his Honour in December 2023, the claim is baseless for two reasons.

20. First, the bias claim cannot now incorporate any complaint about the primary judge’s conduct already covered by the former disqualification application, dismissed on 19 October 2023, in relation to which decision the applicant voluntarily chose to discontinue his appeal brought under s 26(1)(h) of the FCFCA Act. He cannot now resurrect those abandoned complaints in this separate appeal.

21. Secondly, the applicant did not make any further disqualification application to the primary judge based on his Honour’s conduct between 19 October 2023 (when the last disqualification application was dismissed) and 15 December 2023 (being the last day of trial). If the applicant truly believed there were then grounds for a disqualification application, they were waived (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [76] and [79]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6], [55]–[56] and [69]; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). Such waiver blocks the applicant’s prosecution of Ground 1 in the appeal.

    Grounds 2, 3 and 8

22. Grounds 2, 3 and 8 complain about the interim parenting orders made by the primary judge on 4 August 2023. That former interlocutory decision was a “judgment” from which an appeal lay (s 26(1)(c) of the FCFCA Act), but the applicant chose not to appeal from the decision, so he cannot now challenge that decision in this appeal from the final orders made in June 2024.

    Ground 4

23. Ground 4 alleges the primary judge “relied on, and referred to, unproven matters as ‘fact’” when making the final orders, in support of which complaint the applicant cited numerous factual findings made within the reasons for judgment. While the applicant may believe those findings are “unproven”, the primary judge found them proven on the available evidence. No point is served by the applicant now pointing to other evidence which he would have preferred the primary judge to accept. Once acknowledged that the findings were open on the available evidence, they could not be mistaken (Thorne v Kennedy (2017) 263 CLR 85 at [54] and [59]; Edwards v Noble (1971) 125 CLR 296).

24. In oral submissions, the applicant contended that Ground 4(a) was really a complaint about an evidentiary ruling dismissing the parties’ applications to rely upon two affidavits. The evidentiary ruling was manifest in this order made on the second day of trial (17 March 2023):

    2.The oral Applications to rely on the Affidavits of [Mr SS] affirmed 11 March 2023 and [Ms HH] affirmed 8 March 2023 are refused.

25. The applicant sought to rely upon the affidavit of Ms HH and the respondent sought to rely upon the evidence of Mr SS. Both applications were refused, apparently on the basis that the evidence was either irrelevant or of limited probative value, which decision was well within power (ss 69ZX(1) and 69ZX(2)). Given the application of s 69ZT(1) of the Act, the tendency evidence admissibility provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) did not apply at the trial, so the complaint within Ground 4(a) as to that issue is misconceived.

26. In any event, the applicant is only now aggrieved because he was cross-examined on contents of Mr SS’s affidavit, yet the respondent was not cross-examined on the contents of Ms HH’s affidavit. The grievance is unfounded because the inadmissibility of Ms HH’s affidavit, as ruled by the primary judge, did not preclude the respondent from being cross-examined on the information contained within it.

    Ground 5

27. Ground 5 alleges the primary judge erred by “allowing the filing of formal mediation documents”, which the applicant elaborated in oral submissions to mean the respondent filed an affidavit in the proceeding annexing documents which she and her lawyer prepared for an anterior failed mediation. For present purposes that is accepted as being correct, even though the respondent’s solicitor denied it. Nonetheless, there was no impediment to the respondent waiving any privilege she alone enjoyed in documents she prepared for former settlement negotiations. In any event, to the extent that the applicant now seeks to contend he was thereby prejudiced, he conceded that his counsel did not object to the admissibility of the subject documents, so they were received into evidence with his consent.

28. Although the ground of appeal only complains about “formal mediation documents”, the applicant separately complained in his written submissions about three confidential written offers of settlement made by him to the respondent, which she annexed to her affidavit adduced in evidence. The respondent’s solicitor admitted only one of the husband’s written offers (but not all three) was adduced in evidence, even though it was marked “without prejudice”. He also admitted the applicant was cross-examined about that offer being a “bribe” to the respondent, because it offered her settlement of the financial cause if she conceded ground in the parenting cause. To state the obvious, it seems surprising the respondent’s lawyers would have made a deliberate forensic decision to adduce evidence of the applicant’s confidential offer of settlement, though such surprise does not assist the applicant.

29. The applicant submitted that he wrote to the respondent’s lawyers asking them to “uplift the private mediation documents” (or perhaps he meant the offers of settlement), but the lawyers “ignored” his request. Accepting that to be so, the applicant did nothing more about it. His counsel made no objection to the primary judge about the inadmissibility of the documents and so the evidence was received with his consent, meaning his Honour was not called upon to make any evidentiary ruling. It is difficult, if not impossible, to see how the primary judge could be at fault for something done by the respondent without any objection being raised by the applicant and just as difficult to see how the respondent’s conduct of the trial could be rectified by this appeal.

30. The applicant, not having taken any objection to the admissibility of the evidence when represented by counsel, cannot do so now in the appeal (Smits v Roach (2006) 227 CLR 423 at [46]; Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570 at [118]). Not only was no objection raised to the subject evidence, but the applicant neither asked the primary judge for the trial to be aborted nor applied for the primary judge’s disqualification by reason of his Honour having seen the offers.

31. In any event, the parties agreed the primary judge did not refer to the applicant’s offers in the very lengthy reasons for judgment, which strongly suggests the applicant’s offers of settlement were not in any way influential in the outcome.

    Ground 6

32. Ground 6 complains of the primary judge allowing a witness to sit in court for several days of the trial before being cross-examined. At this hearing, the applicant identified the relevant witness to be the case manager employed by the child welfare agency, who authored two reports provided to the Court by the child welfare agency which were then adduced in evidence. The case manager ultimately gave evidence in the trial on the last day, though it is unclear how much evidence she actually heard during the trial before she gave her evidence.

33. The primary judge said this in the reasons for judgment about the case manager’s evidence:

    387.In response to questions from Counsel for the Father, [the case manager] responded as follows.

    388.First, she confirmed that she attended the first days of the final hearing in March and April 2023 simply as an observer. It is apposite to note that the Director-General was not, at that time, a party to the proceeding, having not intervened. Secondly, [the case manager] was not aware that the Mother was proposing Orders that the children spend no time with the Father. Thirdly, she confirmed that she was aware that the children and the Father had a close bond. Fourthly, [the case manager] said that it would be helpful for there to be an “end goal” in terms of possibly working towards a situation where the children and the Father spent time together, but which, in her view, would require, in the first instance, for this to be supervised at a contact centre.

    (Footnote removed)

34. Significantly, as it appears from the reasons for judgment, the applicant’s counsel did not tackle the case manager in cross-examination with the proposition that the reliability of her evidence was tainted by her having heard some of the evidence before giving her own evidence, which proposition she deserved to have squarely put to her for comment if it was to be advanced. But the applicant did not apparently advance the argument to the primary judge. The applicant’s challenge to the case manager rose no higher than that she was too junior and inexperienced for her opinions to carry much weight (at [100] and [404]).

1. In this hearing, the applicant’s submissions in relation to that witness were as follows:

   51.On 16 March 2023, which was day one of the Final Hearing, the Case Manager that had written the CYPS Appraisal was inside the court room. As such, Counsel for the Applicant made a submission that if the CYPS Case Manager were to remain in the court room, she should be cross-examined first so that any testimony was ‘unpolluted’ and would not prejudice the Applicant father.

   52.In response, the ICL made submissions that the CYPS Case Manager should be allowed to remain within the court room, over the entirety of proceedings, for the express purpose of allowing her testimony, which was to be given during cross-examination on the final day, to be coloured by any and all testimony throughout proceedings.

   53.Again, Counsel for the Applicant persisted in her submission that such an action would be prejudicial and that the Case Manager should remain quarantined until her cross-examination. Again, His Honour disagreed and informed Counsel that he was ‘not going to hear from you any further on this aspect’ so Counsel moved on.

   …

   57.On 02 August 2023 the CYPS Case Manager submitted an Affidavit in support of the Respondent mother’s Urgent Application.

   …

   60.It is submitted that His Honour’s decision to allow the CYPS Case Manager to remain in the court room over the entirety of the four (4) days of Final Hearing so that the testimony that she would provide under cross-examination could be ‘coloured’ by what she saw and heard, led to a biased (whether conscious or not) Appraisal that then resulted in the Applicant not seeing or communicating with his children for the last year.

   (Applicant’s written submissions filed 7 August 2024) (Emphasis added)

2. First, it was unremarkable that the case worker filed an affidavit in August 2023 in relation to the respondent’s application for interim parenting orders while the trial was part-heard because, by then, the child welfare agency had intervened as a party in the proceedings (at [63]) and the case worker was a witness upon whose evidence the child welfare agency relied in that dispute.

3. Secondly, the applicant’s submission is quite unspecific about to whom the allegation of bias is attributed. If it is meant to suggest that acceptance of the case worker’s evidence gave rise to an apprehension of the primary judge’s bias, the argument circles back to Ground 1 and fails for the insuperable impediments discussed there. If the applicant was instead alluding to the alleged bias of the case manager, first, that was not put to her in cross-examination, and secondly, that is not a reflection of any appealable error attributable to the primary judge.

4. As pleaded, Ground 6 could only be an asserted error of law. It could not be an alleged factual or discretionary error. However, it is not an error of law for a judge to allow a witness to remain within the Court before giving his or her evidence. While it is commonplace for lay witnesses to be directed to leave the Court before they are cross-examined, such generic directions do not apply to the parties or expert witnesses. The case manager was neither a party nor an expert witness, but she was the solitary witness of the child welfare agency – an independent and impartial party to the proceedings.

5. The Court has broad implied power to control its own process (Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 648; Williams v Spautz (1992) 174 CLR 509 at 518) and wide statutory discretion to manage the conduct of the trial before it (s 26 of the Evidence Act; ss 69ZX and 97(2) of the Act). No miscarriage of justice necessarily results from a witness remaining in Court before giving his or her evidence (Paschalidis v Shamsizadeh [2017] NSWSC 1186; Moore v Lambeth County Court Registrar [1969] 1 All ER 782 at 783–784).

6. There was no miscarriage here because, while the applicant now impliedly asserts an error by the primary judge relying on the case manager’s evidence, he spurned his chance to challenge the witness in cross-examination about the anomaly which he now alleges tainted her evidence.

   Ground 7

7. Ground 7 alleges the applicant’s denial of procedural fairness, particularised by 20 separate complaints.

8. First, it is said numerous procedural decisions concerning the acquisition and adduction of evidence were disadvantageous to the applicant (Grounds 7a, 7b, 7c, 7d, 7g, 7i, 7k, 7l, 7p and 7q). However, the doctrine of procedural fairness only governs the fairness of the trial process and is not a remedy for an aggrieved party’s dissatisfaction with the result of the trial (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). Once the applicant’s submissions were heard in respect of those procedural and evidentiary decisions, the obligation to afford him procedural fairness was fulfilled. The applicant did not contend he was not heard. His perception of the disadvantageous consequences which then flowed from such decisions does not manifest the deprivation of procedural fairness.

9. Secondly, it is said the primary judge wrongly allowed the orders made in September 2019 to be re-opened (Ground 7e). The applicant evidently forgets he was the one who successfully applied to re-open those orders by commencing the fresh proceedings in May 2021. His application to re-open those orders was supported by the respondent. They both contended material changes in circumstances justified the variation of the former orders (s 65D(2)), though they had different ideas about the manner in which the former orders should be varied.

10. Thirdly, it is said the primary judge wrongly prevented the applicant from relying upon the orders made in September 2019 (wrongly described in the Amended Notice of Appeal as being made in September 2023, because no parenting orders were made in September 2023) (Ground 7f). Again, it was the desire of both parties to depart from the orders made in September 2019 and, because those orders were made consensually, there were not premised upon any findings made by a judge to resolve factual conflicts at that earlier point in time.

11. Fourthly, it is said the primary judge allowed the evidence of one witness to “supersede” the evidence of another witness (Ground 7h). To the extent this complaint means the primary judge preferred the evidence of one witness over the evidence given by another witness, that is an entirely unexceptional part of the judicial function. It represents a considered decision which is integral to the determination of the dispute. It has nothing to do with the fairness of the trial, which is the confined domain within which the doctrine of procedural fairness operates.

12. Fifthly, it is said the primary judge wrongly acted on evidence to make the interim parenting orders in August 2023 (Ground 7j). As already observed, this is an appeal from only the orders made in June 2024, not those made in August 2023.

13. Sixthly, it is said that the primary judge wrongly failed to hear an interlocutory application in September 2023 (Grounds 7m, 7n, 7o and 7r). Even if that is so, it had no bearing upon the fairness of the trial of the parties’ respective applications for final orders which resulted in the appealed orders made in June 2024. The primary judge referred to the interlocutory application, pointing out the applicant could not expect his Honour to hear and determine that application when the applicant was simultaneously seeking his Honour’s disqualification for bias and he then appealed from the dismissal of that application (at [81]–[86]). His Honour then explained the interlocutory application was subsumed by the final orders made following upon the completion of the trial in December 2023 (at [94]).

14. Lastly, it is said the primary judge wrongly failed to allow the applicant’s contempt application against the respondent to be “properly heard” (Grounds 7s and 7t), but he admits he voluntarily discontinued the contempt application and the primary judge made a costs order against him in respect thereof (Order 12), as was explained in the reasons for judgment (at [405]–[449]).

    DISPOSITION

15. The grounds of appeal evince no reasonable prospects of success and so it would be futile to re-instate the appeal. The re-instatement application is dismissed.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       9 August 2024