FERANTI & CONNOR (INTERIM HEARING APPEAL)
[2009] FamCAFC 208
•20 November 2009
FAMILY COURT OF AUSTRALIA
| FERANTI & CONNOR (INTERIM HEARING APPEAL) | [2009] FamCAFC 208 |
| FAMILY LAW - APPEAL – LEAVE TO APPEAL – INTERLOCUTORY ORDERS – Applications for leave to appeal – Where the trial Judge did not err in principle – Where failure to grant leave will not work a substantial injustice – Applications dismissed. FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge failed to afford the father procedural fairness – Whether the trial Judge showed bias or prejudice towards the father – Where the trial Judge had regard to the material and evidence before her – Where no bias or prejudice towards the father was demonstrated – Where the trial Judge gave the father a proper opportunity to outline his application – Where the trial Judge provided procedural fairness to the father and followed the guidelines referred to in Re F: Litigants in Person Guidelines. FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge failed to properly address the applications and evidence before her – Where the trial Judge clearly understood the issues before her – Complaints lack merit. FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge erred in refusing leave to bring contravention proceedings – Whether the trial Judge erred in adjourning the father’s interlocutory applications – Whether the trial judge erred in dismissing the father’s application that a judge interview the child – No error of principle established. FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge erred in ordering the father to pay half the costs of the Family Assessment Report – No error of principle established. FAMILY LAW - APPEAL – INTERLOCUTORY ORDERS – Whether the trial Judge erred in refusing to stay orders pending the determination of an appeal – Where the trial Judge considered the merits of the grounds of appeal – Where the father was in breach of an order to file a Financial Statement – No merit to complaint. FAMILY LAW - APPEAL – Notice of Child Abuse – Whether the trial Judge erred in concluding that it was not appropriate to deal with the Notice until a Family Assessment Report had been provided – Notice of Child Abuse does not constitute a separate cause of action – No error established. FAMILY LAW - APPEAL – Application to adduce further evidence – Where the application was opposed by the independent children’s lawyer – Where the material relied upon was contentious – Application dismissed. Family Law Act 1975 (Cth) – s 68LE(6), s 68LA(7), s 93A(2), s 94AA CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Feranti |
| RESPONDENT: | Ms Connor |
| INDEPENDENT CHILDREN’S LAWYER: | Nicola Atchison |
| FILE NUMBER: | MLF | 10368 | of | 1994 |
| APPEAL NUMBER: | SA | 7 | of | 2008 |
| SA | 32 | of | 2008 |
| DATE DELIVERED: | 20 November 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Boland, Thackray & Benjamin JJ |
| HEARING DATE: | 4 March 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 February 2008; 17 March 2008 |
| LOWER COURT MNC: | [2008] FamCA 137; [2008] FamCA 1224 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Feranti appeared in person |
| SOLICITOR FOR THE RESPONDENT: | No appearance by the respondent. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Bowler |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms N Atchinson |
Orders
The father’s application for leave to appeal the Orders 2 to 8 of the Honourable Justice Dawe of 14 February 2008 is dismissed.
The father’s Notice of Appeal (No SA 7 of 2008) is dismissed.
The father’s application for leave to appeal the orders of the Honourable Justice Dawe of 17 March 2008 is dismissed.
The father’s Notice of Appeal (No SA 32 of 2008) is dismissed.
The father’s application to adduce further evidence is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym of Feranti & Connor (Interim Hearing Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 7 of 2008
SA 32 of 2008
File Number: MLF 10368 of 1994
| Mr Feranti |
Appellant
And
| Ms Connor |
Respondent
And
| Nicola Atchison |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
Mr Feranti sought, in two separate Notices of Appeal, to appeal, or if necessary, be granted leave to appeal, interlocutory orders made by Dawe J on 14 February 2008 and 17 March 2008 in proceedings relating to parenting and contravention proceedings in respect of his daughter T. T was aged almost 14 years at the date of the hearing of these appeals. She lives primarily with her mother, Ms Connor.
T’s parents have been involved in extensive litigation relating to parenting issues, alleged contraventions and other proceedings, including appeals. The parenting proceedings continue.
The mother did not participate in the appeal. However, we were informed the mother’s solicitor wrote to the Appeal Registrar and indicated that she would abide any order made by the Court. The independent children’s lawyer (“the ICL”) was represented by Mr Bowler of counsel. He provided written and oral submissions and sought that the father’s appeals should be dismissed.
The father’s two appeals were argued before us at the same time as an appeal against final orders made by Watt J. We dismissed the appeal against Watt J’s orders and published our reasons in that matter on 30 September 2009. One of Watt J’s orders (which we will later set out) is relevant to understanding an issue raised in the appeal SA 7 of 2008.
Because the father had not obtained a copy of her Honour’s reasons for judgment which had been delivered orally on 17 March 2008, we made orders to facilitate the provision of her Honour’s reasons to us and to the parties. We also provided a timetable for filing of further written submissions after receipt of her Honour’s judgment.
Before us the father sought to adduce further evidence in support of both appeals. The material sought to be adduced included the transcript of proceedings before Dawe J on 17 March 2008. As there was no opposition from counsel for the ICL to us having the transcript, we admitted it as part of the appeal book. We reserved our decision in respect of the balance of the application and indicated we would give our reasons with these reasons.
After we have set out some brief background material, we propose to outline the complaints raised in each appeal, and discuss those complaints where appropriate by reference to authority. We will then, if necessary, deal with the issue of whether leave to appeal is required. Finally, we will deal with the further evidence application.
For convenience, we will refer to the appeals/applications for leave in SA 7 of 2008 as “the first appeal”, and SA 32 of 2008 as “the second appeal”. Although the hearings before Dawe J were interlocutory, again for convenience we will refer to her Honour as “the trial Judge”.
Background
The relevant background is contained in paragraphs 11 to 18 of our judgment delivered on 30 September 2009 (published under the pseudonym Feranti & Connor (Contravention Appeal) [2009] FamCAFC 178) as follows:
11.The father was born in December 1957. He is accordingly now aged 51 years. The father is a computer programmer.
12.The mother was born in November 1960. She is presently aged 48 years. The mother was engaged in employment at the date of the hearing as a pharmacist.
13.The parties commenced cohabitation in 1987 and married in May 1988. The child was born in March 1995.
14.The parties separated in December 1995 and proceedings were commenced in the Court for parenting orders on 16 May 1996.
15.On 10 December 1996 Hase J made orders (varying earlier orders made on 22 May 1996) that the father have contact (as it was then referred to) pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”) with the child (who was then aged approximately 18 months) for short periods twice per week.
16.On 3 December 1999, after a five day defended hearing, in which the child was separately represented by a child representative (as the ICL was then known), Guest J made orders that the child live with the mother, and the father have contact with her each alternate weekend, half the school holidays and on some other special occasions. Order 11 of his Honour’s orders discharged all previous orders relating to residence and contact.
17.On 2 February 2004 Brown J made orders which permitted the mother to change the residence of the child to South Australia and provided that the father have contact with the child during South Australian school holidays for one week in each mid-term holiday and for three weeks during the Christmas holidays. Her Honour also provided that during school terms the father have telephone contact each Wednesday between 7.00 pm and 8.00 pm, and in the event the father was not exercising contact with the child on Father’s Day, the father’s birthday and the child’s birthday, he also have telephone contact on those days between 7.00 pm and 8.00 pm. The telephone contact was subject to the provisos that the telephone contact be initiated by the child and that the father keep the mother informed of a telephone number to be used by the child to initiate the telephone contact. For purposes of physical contact the mother was required to provide, at her expense, a return airline ticket for the child to travel between Adelaide Airport and Melbourne Airport, the mother to notify the father in writing of the date and time of travel and other travel details, and the father to notify the mother no later than two weeks prior to the commencement of the contact period that he intended to exercise the contact.
18.On 2 August 2004 Watt J made orders varying the conditions relating to the procedure for notification of travel arrangements.
On 13 November 2007 Watt J also made an order restraining the father from commencing any further contravention application without the leave of the Court. As the father in the first appeal seeks to challenge the trial Judge’s refusal to grant leave to proceed with particular contravention charges, but not other charges, and notwithstanding he has not sought to appeal Order 1 of her Honour’s orders, it is appropriate that we set out Order 6 made by Watt J on 13 November 2007:
The father be and is hereby restrained from filing or commencing an application without the Court’s permission alleging contravention of a parenting order or an injunction or condition attached to a parenting order in circumstances where:
(a)there has been substantial compliance with the parenting order, injunction or condition; and
(b)the father’s time spent with and opportunities to communicate with the child have not been significantly compromised
and I direct that any application to start a case for contravention brought by the father is to have annexed to the affidavit in support a copy of my reasons delivered 26 October 2007.
The litigation between T’s parents had originally been heard by Judges in the Melbourne Registry of the Family Court, however, on 13 November 2007 the proceedings were transferred to the Adelaide Registry of the Court by order of Watt J. The father’s appeal against that order was dismissed by us.
When the parenting proceedings were listed before Burr J in Adelaide on 21 November 2007, he noted that this was not a matter to be included in the Court’s Magellan Project but that there were factors which required the proceedings to be specially managed.
The proceedings were listed before Dawe J as Case Management Judge on 13 December 2007 and an order was made appointing an independent children’s lawyer.
On 28 December 2007 the father filed an Application in a Case. He sought orders for the immediate return of the child, that he be granted “make up time” with the child (for the one day lost at Christmas), that the mother provide immediate telephone contact between the child and himself, that he be permitted to provide the child with a mobile phone, that the incumbent ICL be removed, and in lieu of a Family Assessment Report or the appointment of a new ICL, that a judge interview the child, and that he be granted leave to file a contravention application “in relation to the mother’s on-going disregard and breaches of currently existing court orders”. The father had filed a Notice of Child Abuse or Family Violence on 26 October 2007. When the applications were before Dawe J on 14 February 2008 the mother had filed no material. The mother’s solicitor orally opposed the father’s application (Transcript, 14 February 2008, p 22). Counsel for the ICL indicated he did not wish to be heard in respect of the father’s application for leave to commence contravention proceedings, and sought the balance of the father’s applications be adjourned (Transcript, 14 February 2008, p 25).
On 14 February 2008 Dawe J granted leave to the father to commence contravention proceedings in respect of five alleged breaches of an order for the father to have telephone communication with the child, adjourned the father’s application for “make up” time with the child to 18 March 2008, adjourned the father’s applications for telephone contact, provision of a mobile phone to the child, and a restraining order until after receipt of a Family Assessment Report, and dismissed the father’s application for the removal of the ICL and for the child to be interviewed by a judge. Her Honour also ordered the Family Assessment Report be prepared as soon as possible. She ordered the father to file and serve a Financial Statement to assist in the determination of whether the father should pay one half of the costs of the Family Assessment Report (the mother having conceded she would pay one half of such fees).
On 17 March 2008 (the adjourned date having been changed administratively) Dawe J ordered the father to pay one half of the costs associated with the preparation of the Family Assessment Report, and otherwise adjourned the father’s outstanding applications until receipt of the Family Assessment Report.
The grounds of appeal
The father relied on 19 grounds in his first appeal, and 7 grounds in the second appeal. His submissions in support of the individual grounds contain repetitive complaints and considerable overlap. We consider the complaints can most efficiently be determined by grouping the grounds of appeal in both appeals.
(a) the first appeal
The father’s challenges to Orders 2 to 8 inclusive of the trial Judge’s orders of 14 February 2008 fall into the following topics:
·asserted bias/procedural unfairness/denial of natural justice challenges (grounds 2, 3, 5, 6, 7, 8, 9 and 10);
·asserted failure by her Honour to address properly applications/evidence before her including the application to dismiss the ICL (grounds 1, 4, 15 and 16);
·asserted error in the exercise of discretion by the trial Judge in refusing leave to institute contravention proceedings in respect of asserted breaches by the mother of orders associated with previous Christmas holiday time with the father (grounds 11, 12, and 13);
·asserted error in adjourning the father’s interlocutory applications (ground 14);
·asserted error in rejecting the father’s application for a judge to interview the child (ground 17); and
·grounds relating to the Notice of Child Abuse (grounds 18 and 19).
(b) the second appeal
The father’s challenges to the orders made on 17 March 2008 can conveniently be grouped as follows:
·asserted bias by the trial Judge/denial of natural justice (grounds 1 and 6);
·asserted error in making order that the father pay half of the payment of the Family Assessment Report (grounds 2 and 5);
·asserted error in manner of dealing with Notice of Child Abuse (grounds 3 and 4) (we note here substantial overlap with grounds 18 and 19 of the first appeal); and
·asserted error in the exercise of discretion in refusing to stay the orders of 14 February 2008 pending determination of the appeal against those orders (ground 7).
We will commence our discussion by considering the groups of grounds we have identified in the first appeal. In this discussion we will deal with grounds 3 and 4 of the second appeal given they are substantially identical to grounds 18 and 19 in the first appeal. We will thereafter consider the remaining groups of grounds we have identified in respect of the second appeal.
The first appeal
(a) asserted bias/procedural unfairness/denial of natural justice challenges (grounds 2, 3, 5, 6, 7, 8, 9, and 10)
2.The judge ignored the facts and evidence before her that were presented by the father, showing bias and prejudice against him.
3.The presiding judge repeatedly cut the father short whilst the father was speaking and making submissions. This denied the father procedural fairness, disrupting his thoughts and submissions.
5.The judge made comments that showed she had pre-conceived and pre-judged the material before her.
6.There has been a denial of justice as the father was denied the opportunity to present evidentiary material that would have supported his application.
7.There has been a denial of justice and procedural fairness as the judge did not give the father an opportunity to respond to the statements made on behalf of the mother and the child representative. This prevented the father from highlighting the deliberately false statements, and deliberately misleading statements, made by both representatives.
8. The judge allowed both the mother’s representative and the so-called independent child representative to give evidence without having filed any response documents or affidavit material, thus showing favour towards both and against the father.
9.The judge made decisions based not on the facts before her but based on the bias and prejudice against the father.
10.The judge further made decisions influenced by her anger towards the father and her emotional state of mind.
relevant principles
These grounds are canvassed in paragraphs 8-16, 18-19, 20-27, 30 and 31 of the father’s written submissions. We will, where appropriate, summarise those submissions. Before we do so, we turn to the principles applicable to these grounds insofar as they assert bias or apprehended bias against the father by the trial Judge.
In Feranti & Connor (Contravention Appeal), which was heard at the same time as this appeal, this Full Court set out the principles in relation to apprehended or actual bias in respect of a judicial officer. We said:
135.The principles in relation to apprehended or actual bias in respect of a judicial officer are well known. In Johnson v Johnson (2000) 201 CLR 488 the governing principles are set out in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492-493 as follows:
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.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
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, Deane 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 prejudgment. 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 in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. [footnotes omitted]
the father’s submissions
In summary the father submits:
·errors by the trial Judge in her recitation of facts in paragraphs 6 and 9 of her reasons;
·that the trial Judge’s reasons demonstrate that she did not understand the applications before her, and failed to deal with parts of his application;
·that the trial Judge erred in finding that the father’s evidence did not support any inappropriate behaviour by the ICL;
·that the trial Judge had failed to read the father’s affidavit material;
·that the trial Judge’s behaviour was inappropriate (he asserted he was interrupted, that the trial Judge failed to afford appropriate time to his applications, and she refused to allow him to make submissions in reply to those of the mother and the ICL);
·that the trial Judge had predetermined issues (that the telephone recording of the child’s conversations with the father was illegal);
·that her Honour unfairly favoured the ICL in permitting the ICL to continue in the matter when there was evidence of collusion between the ICL and the mother; and
·that the trial Judge erred in permitting the mother’s solicitor to make submissions when the mother had not filed any affidavit material.
discussion
We commence our discussion by referring to the father’s complaints in the first two categories identified above.
Having referred to the applications before her, the trial Judge noted the father relied on material in his affidavit filed 28 December 2007 in support of his application for leave to file the contravention proceedings. At paragraph 8 of her reasons her Honour considered the evidence presented by the father in paragraphs 38 and onwards of his affidavit. At paragraph 9 of her reasons she noted the father agreed to the change to the child’s travel arrangements at the commencement of his holiday time with her and that it was his understanding that he would gain an extra day at the end of his time with her. The fact that her Honour went on to observe that the mother’s alleged failure to give adequate notice of flight details (where it was conceded that notice had been given), does not show bias or prejudice against the father.
The father argues her Honour was, at paragraph 13 of her reasons, “once again in error” in stating that there were no specifics of the allegations of contravention. Paragraph 13 must be read in conjunction with paragraph 12 of her Honour’s reasons. At paragraph 12 her Honour said:
The events of 24 December are set out in the father’s affidavit filed on 28 December 2007 and commencing in paragraph 4. In relation to that the mother has not filed any affidavit dealing with the events or any knowledge that she may have as a result of conversations with the child or dealings with the police, but it is conceded that the period of time [the child] spent with the father came to a conclusion on 24 December. It appears that the shopping centre made arrangements for [the child] to come into the supervision of the local police, and was subsequently collected by her mother and returned to South Australia.
Her Honour’s observations show that she had regard to the material set out in the father’s affidavit in relation to the events of 24 December 2007 and his Application in a Case seeking orders that the child be returned to him, and that there be make up time and various other orders. She quite properly observed that there was “no specific application in relation to a contravention which the father is alleging occurred” as a result of the events of 24 December 2007.
The father complains, at paragraph 10 of his written submissions, that the trial Judge’s reasons (paragraph 17) “would be an encouragement for the mother to continue to disregard court orders”.
At paragraph 17 her Honour said:
Leave [for the father to file a contravention application in relation to specific alleged contraventions] is granted but it must not be seen to be an encouragement to bring further proceedings of that nature in this Court; to the contrary. The Court is concerned that the welfare of [the child] would seem to suggest that what needs to be done is for the matter to be heard promptly and appropriately, so that final orders can be made, bringing an end to the ongoing proceedings in this Court for the benefit of the child.
In our view, her Honour’s comment cannot be construed as showing bias or prejudice towards the father or to have the connotation which the father asserts. Her Honour gave the father leave to commence proceedings in respect of the orders for telephone communication, but questioned the wisdom of such proceedings having regard to the best interests of the child, against the history of the significant litigation which had already occurred, and having regard to the final parenting proceedings awaiting determination.
At paragraph 11 of his written submissions the father complains that her Honour granted him leave to file a contravention application in respect of the telephone orders, but did not grant him leave in respect of the travel notices for the time spent between the father and the child in the December/January period of time spent. There is no inconsistency or contradiction in relation to her Honour’s decision. Her Honour had regard to the evidence before her in relation to the concessions made about notice having been given, and the father’s agreement to the late arrival of the child at the commencement of that period of time spent. This does not demonstrate that her Honour showed bias or prejudice towards the father.
Similarly, at paragraph 12 of his written submissions, the father complains her Honour erred in leaving the question of make up time to another date. Her Honour did not ignore the facts or evidence before her in respect of this issue. Her Honour set out, at paragraphs 11 and 12 of her reasons, the difficulties which had occurred between the father and the child over Christmas, and observed that the question of make up time ought to be determined after receipt of the Family Assessment Report. She explained it was a matter to be further considered during any contravention proceedings. Her Honour did not fail to make a determination on the “very issue” before her (as asserted by the father). Her Honour properly ordered a Family Assessment Report and held the question of “make up” time in abeyance until she had more material before her upon which she could make a proper determination. This does not demonstrate her Honour failed to consider the facts and evidence before her or that she showed bias or prejudice towards the father.
At paragraph 13 of his written submissions the father complains about the question of time lost by her Honour adjourning paragraph 2 of his application to another date. Again, this decision does not demonstrate that her Honour failed to have regard to the evidence or facts before her which were presented by the father and as a consequence showed bias and prejudice towards him. Her Honour could not provide a suitable date until such time as the Family Assessment Report had been released.
At paragraph 14 of his written submissions the father says that further evidence of her Honour’s failure to have a grasp of the application before her was the recording by her Honour that there was an order of Brown J in relation to telephone contact. The father goes on to complain that the telephone contact order is only operative during school terms.
Her Honour explained (at paragraphs 21-23) “that there is already in existence the order of Brown J in relation to such telephone contact”. Her Honour was confirming there was already an order in place which provided for telephone contact between the father and the child. This does not demonstrate that her Honour had pre-conceived and pre-judged the material before her.
Her Honour’s observations demonstrate that she did have regard to the evidence and facts before her. Further, presuming school had commenced by 14 February 2008, the existing order for telephone communication was operative. This complaint is without substance.
The father complains about her Honour taking into account the submissions of the ICL in the absence of any affidavit material being filed by the ICL. The ICL was entitled to make submissions in the absence of having filed any affidavit material. Her Honour in having regard to those submissions did not demonstrate any bias or prejudice to the father.
The father also complains that the trial Judge demonstrated bias, or was procedurally unfair in allowing the mother’s solicitor to make submissions when the mother had failed to file any material in response to the father’s applications. Our reading of the transcript discloses that the mother’s solicitor’s submissions included confirming the appeal against Watt J’s orders had not been heard and an explanation of the circumstances of the previous use of the tape recordings before Watt J. While the mother’s solicitor did refer to historical matters concerning the proceedings in the context of discussion about the tape recordings, nothing in her Honour’s reasons indicates that she took into account any controversial matter raised by the mother’s solicitor.
At paragraph 15 of his written submissions the father complains that, at paragraph 23 of her reasons, the trial Judge erred as to the facts of his application to provide the child with a mobile telephone, and misdirected herself. Her Honour had regard to the facts and evidence before her. It was because of the need for further evidence, particularly in relation to the wellbeing of the child and the child’s relationship with the father, that she directed the Family Assessment Report be prepared. Therefore the father’s ground that “the judge ignored the facts and evidence before her that were presented by the father showing bias and prejudice against him” must fail. We note it was the matters raised by the father which caused her Honour to request the expedition of the report so the issue of the mobile phone could be addressed.
The father’s third identified area of complaint concerns the ICL. At paragraph 16 of his written submissions the father asserts her Honour was in error when she stated that his affidavit material and submissions did not support his allegation of inappropriate behaviour by the “so-called independent children’s lawyer”. Her Honour had regard to the father’s affidavit material at page 24 of her reasons, and concluded at paragraph 25 that:
The affidavit material before me and the submissions of the father do not support any allegation of inappropriate behaviour by the Independent Children’s Lawyer…
This finding does not support the father’s assertion that her Honour ignored the facts and evidence he presented, neither does it show bias and prejudice towards him. Her Honour was entitled to consider the evidence and make such findings as she did.
The father also complains that her Honour failed to read his affidavit filed 28 December 2007. It is evident from the transcript, and her Honour’s reasons, that she had read, and had regard to, the father’s affidavits when making her findings. Examples can be found at paragraph 8, 12, 24 and 25 of her Honour’s reasons. At paragraphs 12 (which we earlier set out but now repeat) and 14 her Honour said:
The events of 24 December are set out in the father’s affidavit filed on 28 December 2007 and commencing in paragraph 4. In relation to that the mother has not filed any affidavit dealing with the events or any knowledge that she may have as a result of conversations with the child or dealings with the police, but it is conceded that the period of time [the child] spent with the father came to a conclusion on 24 December. It appears that the shopping centre made arrangements for [the child] to come into the supervision of the local police, and was subsequently collected by her mother and returned to South Australia.
…
The father has also referred to, in his most recent affidavit filed today, the fact that he has not been having telephone communication with [the child] in accordance with the orders of Justice Brown, which are still in force. In his affidavit he refers to four dates, ranging from November 2007 to 6 February 2008, when he did not have telephone communication with [the child]...
In relation to the father’s complaint that her Honour asked questions of him, we are satisfied from our reading of the transcript that what her Honour was doing was ensuring she understood what it was the father was seeking in his applications. This role was explained by the Full Court in Re F: Litigants in Person Guidelines (2001) FLC 93-072, paragraph 253 at sub-paragraphs 8 and 9 as follows:
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9. Where the interests of justice and the circumstances of the case require it, a judge may:
• draw attention to the law applied by the Court in determining issues before it;
• question witnesses;
• identify applications or submissions which ought to be put to the Court;
• suggest procedural steps that may be taken by a party;
• clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The father complains that her Honour stated the “telephone recordings are illegal”, and that such a statement demonstrated her Honour’s pre-determination of an issue. A reading of the transcript is illuminating:
HER HONOUR: Yes. On what basis do you say they could be received in evidence? How are they not obtained illegally?
[MR FERANTI]: This has all been canvassed before Watt J, your Honour. I did play parts of recordings before his Honour. In fact, as you said earlier the mother in her own material is attaching transcripts of my recordings in her affidavit. They can’t claim on the one hand: “Oh, yeah, you’re not allowed to present those. We don’t want to hear about it because they’re damaging to us,” but on the other hand, “We’re going to use them as well because at some particular point in time we thought it might be convenient for us.”
HER HONOUR: Did Watt J rule that these recordings were admissible?
[MR FERANTI]: Yes. Some of those were played in court as part of my submission towards the contravention application that I had before - - -
HER HONOUR: I can understand why illegally obtained or the question of whether some secret telephone recordings might be relevant to contravention proceedings. I’m not able to understand any significant connection between those recordings and a request to provide a telephone to a 12-year-old girl, [Mr Feranti].
[MR FERANTI]: Just from the - - -
HER HONOUR: Bearing in mind that this matter needs to proceed, I’m not proposing to listen to the recordings for the purposes of deciding whether she should have a telephone or not. I have the material before me which is alleged, setting out what you say were the factual circumstances in relation to those telephone calls being terminated. If you can move on and give me your other submissions, please. (Transcript, 14 February 2008, p 16)
We are satisfied this passage discloses no pre-judgment by her Honour.
The father says that during the hearing the trial Judge said:
… It can’t possibly be appropriate to set the matter down for trial in this registry when you’re seeking to have the order that it be heard in this registry set aside. (Transcript, 14 February 2008, p 19)
Her Honour had been made aware that an appeal had been lodged in relation to Watt J’s order to the transfer of the proceedings from the Melbourne Registry to the Adelaide Registry. Her Honour’s comments must be seen in the context of the whole of the exchange between herself and the father. This exchange is not indicative of her Honour ignoring the facts or evidence presented by the father nor does it demonstrate bias and prejudice towards the father.
The father complains that her Honour allowed the mother’s solicitor to make submissions in circumstances where no response or affidavit material had been filed. We have already noted her Honour permitted the mother to rely on an oral response to the father’s applications. Her Honour, by allowing the mother’s solicitor to do so, did not demonstrate bias or prejudice against the father.
At paragraph 31 of his written submissions the father asserts that the trial Judge lost control of herself at the end of the hearing, and as a consequence, allowed her anger towards him to influence the orders she made. The transcript discloses that the father made a most intemperate and inflammatory statement in response to her Honour’s request that he comment on whether he could pay half the report costs in 14 days. He said:
[MR FERANTI]: I will say several things in relation to that, your Honour. I’m not going to be blackmailed into providing money to people who are just going to waste it. (Transcript, 14 February 2008, p 27)
However, he later appropriately apologised to her Honour. We consider an overall reading of the transcript discloses her Honour dealt firmly but fairly with the father in the context of his inappropriate remarks.
The father asserts a denial of procedural fairness by the trial Judge interrupting him during the hearing and further that he was not given an opportunity to complete his submissions. Our reading of the transcript discloses the trial Judge:
a)conversed with the father to confirm the nature of his applications;
b)listened to the father’s explanation about difficulties he asserted in communicating with the Family Assessment Report writer (Transcript, 14 February 2008, p 3);
c)allowed the mother’s solicitor to explain that the mother was prepared to pay half of the Family Assessment Report costs;
d)confirmed which particular orders made by Watt J were subject of an appeal by the father and steps taken in respect of that appeal (Transcript, 14 February 2008, p 4);
e)addressed questions relevant to the father’s financial circumstances to consider whether he could pay half of the Family Assessment Report costs; and
f)determined it was not relevant to receive into evidence tape recordings of telephone conversations between the father and the child for the purposes of determining whether the child should have a mobile phone.
We are satisfied that her Honour gave the father a proper opportunity to outline his applications, to explain his asserted difficulties in respect of lack of communication from the Family Assessment Report writer, adequate opportunity to respond to questions and submissions, clarified his assertions about his financial circumstances, and considered and properly rejected (in terms of the application before her) his request to admit the tape recordings into evidence.
At paragraph 30 of his written submissions the father complains that the “presiding judge did not allow the father to respond to the comments and submissions made by either the mother’s solicitor or counsel for the child representative”. The trial Judge had heard the father’s submissions and did not consider it was necessary to hear from him any further. Her Honour had provided the father ample time to argue his case in this interim hearing. Such proceedings are by their nature circumscribed and less formal. Her Honour was entitled to deal with the matter as she did.
At paragraph 25 of the father’s written submissions the father complains that Mr Bowler, counsel for the ICL repeatedly used pronouns such as “us” and “we” throughout the hearing. He submits the use of these pronouns suggest collusion or lack of independence. Her Honour observed correctly:
Mr Bowler is not the independent children’s lawyer… (Transcript, 14 February 2008, p 17).
Mr Bowler was acting as counsel for the ICL and her Honour was entitled to accept that as counsel for the ICL he was making submissions on instructions. The fact that counsel for the ICL used pronouns such as “us” and “we” does not raise a ground of appeal.
The father sets out a number of complaints in relation to the decisions her Honour came to in relation to adjourning the questions of make up time, the provision of a mobile telephone to the child, and the conditions of its use, for further hearing after the provision of the Family Assessment Report. Further he complains her Honour:
i.completely ignored the contents and relevance of the Notice of Child Abuse and his supporting affidavit;
ii.was in error when stating the affidavit material and submissions of the father did not support any allegation of inappropriate behaviour of the “so-called independent children’s lawyer”;
iii.was in error in stating that it would not be appropriate for a judge to interview the child;
iv.stating the telephone recordings were illegal; and
v.stating Mr Bowler is not the independent children’s lawyer.
We reject the father’s submissions. Her Honour considered the material before her and determined that the question of make up time, the provision of a mobile telephone and its conditions of use should be held in abeyance until there was more material upon which she could make a determination. Her Honour properly ordered and expedited a Family Assessment Report to obtain further information. This does not demonstrate that the decisions her Honour made were based on her anger towards the father or her “emotional state of mind”. Her decisions were child focused and were based on obtaining the material she needed to enable her to make a determination in the best interests of the child.
Her Honour was concerned about the Notice of Child Abuse and took urgent action in relation to it.
We have already dealt with the father’s complaints about an asserted failure to deal with his application to remove the ICL, complaints about counsel for the ICL, and his misconceived assertion that the trial Judge made findings that the tape recordings constituted illegally obtained evidence. We will discuss later in these reasons her Honour’s treatment of the Notice of Child Abuse, and rejection of the application for a judicial interview of the child. It is sufficient we note here that our reading of the transcript discloses no bias, prejudice or procedural unfairness in respect of these topics.
Our reading of the transcript discloses that her Honour provided procedural fairness to the father and that she followed the guidelines referred to Re F: Litigants in Person Guidelines. The father’s complaints on this topic have no substance.
(b) asserted failure by her Honour to properly address applications/evidence before her including the application to dismiss the ICL (grounds 1, 4, 15 and 16)
1.The presiding judge repeatedly erred as to the facts of the application before her and so misdirected herself.
4.The presiding judge either did not read, did not understand, or simply ignored the contents of the two affidavits of the father that were before her, and this was reflected in the judge’s questions and statements, and judgement.
15.The judge erred in accepting the submissions of both the mother’s representative and the so-called independent child representative.
16.The judge erred in stating that the affidavit material before her, and the submissions of the father, did not support any allegations of inappropriate behaviour by the so-called independent children’s lawyer.
The father relies upon paragraphs 5 to 8, 10 to 14, 16 and 24 of his written submissions filed 13 February 2009. As will be apparent these paragraphs are relied on in support of other grounds and there is considerable overlap and repetition in the material relied on by the father.
The father’s principal submission is that her Honour did not have a grasp of even the basics of the matter. The father complains that a quote made by her Honour in paragraph 5 of her ex tempore reasons was incorrect. There her Honour said:
Justice Burr directed:
“That any application to start a case for contravention, brought by the father, is to have annexed to the affidavit in support a copy of Justice Watt's reasons delivered on 26 October 2007.”
Her Honour’s reasons were delivered during the course of a directions hearing. These were ex tempore reasons and as such did not need to be lengthy but needed to be sufficient. In Maviglia v Maviglia [1999] NSWCA 188 Mason P said at [1]:
An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them. ...
More recently in Potter v Byrne (2009) 40 Fam LR 644, the Court has said at paragraph 44:
Further, as recognised, the reasons were given extempore. In a paper entitled “Practical Impediments to the Fulfilment of Judicial Duties” published in The Judicial Review Vol 6 number 4, Heydon J said:
Thirdly, appellate courts will make assumptions in favour of an ex tempore judgment which they will not make for a judgment reserved for some time. A failure to refer to evidence in an ex tempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked …
Her Honour was aware that a direction had been made. The direction had been made by Watt J in his orders made 13 November 2007 where as an addendum to Order 6 he placed a requirement upon the father to annex to any affidavit, in support of a contravention application a copy of his Honour’s reasons delivered 26 October 2007. The fact that her Honour mis-attributed the direction to Burr J is not indicative of an error such as is asserted by the father.
Similarly the father complains that her Honour asserted the filing of proceedings had occurred on 8 December 2007 when in fact it was filed on 28 December 2007. The father says this:
… highlights the presiding judge’s lack of care/interest and lack of understanding of the facts of the matter. (Father’s submissions filed 13 February 2009, paragraph 7)
These complaints need to be seen in the context of a matter where her Honour noted there were some 498 documents on the Court file (at that time). This again is not an error, other than a slip in terms of a date in ex tempore reasons, which in the context of the decision to be made was of little or no practical consequence. Furthermore, the error may not have been made by her at all, in that it could have occurred in the transcription of her oral reasons.
The father complains that her Honour was in error in concluding that a loss of one day in time the child would spend with him and the alleged delay in notifying him did not significantly compromise his time with the child. He directed us to the comment by her Honour that the loss of one day’s contact between the child and the father may not amount to a significant compromise of the father’s time with the child and that the mother’s alleged failure to give adequate notice of travel details (where it was conceded by the father that notice had been given) may not have had the effect referred to in the orders of Watt J, that is, there was substantial compliance with orders and no significant compromise of them.
In that regard, it is clear that her Honour was not making a finding or coming to a final conclusion. The remarks appear to be more of an observation. In any event, this is not indicative that her Honour did not have a grasp on the basics of the matter, in fact, the transcript and reasons demonstrate the contrary.
The father claims that an observation made by her Honour, at paragraph 13 of her reasons, that:
There is no specific application in relation to a contravention which the father is alleging occurred as a result of that event. If that were the case, I would need to know the specifics of the allegations of contravention.
amounted to an error.
As we earlier observed, paragraph 13 must be read in conjunction with paragraph 12 of her Honour’s reasons and should be seen in the context of the events which followed 24 December 2007. On that date the child was in the care of the father and after an argument between them, the child was returned to the care of the mother. The father set out in his affidavit filed 28 December 2007 his version of the events which occurred on 24 December 2007. He filed an application in a case on the same day seeking orders that the child be returned to him and that there be make up time and various other orders. He also sought further orders that:
The father be granted leave to file a Contravention or Contempt Application in relation to the mother’s on-going disregard and breaches of currently existing court orders, also leave be granted to file an application seeking the above orders.
The father sought that this be dealt with on an ex parte basis. Her Honour quite rightly observed that at paragraph 13:
There is no specific application in relation to a contravention which the father is alleging occurred as a result of that event.
Her Honour quite properly observed that she would need to know the specifics of the allegations of the alleged contravention. Her Honour clearly understood the issues before her.
The father in his submissions on this topic repeats his complaints about the trial Judge’s comments about further contravention proceedings. We have already dealt with that complaint and it is unnecessary we repeat our reasons for rejecting it.
The father complains that although her Honour granted leave for him to commence proceedings in relation to the alleged contravention of the telephone orders she did not give him leave in relation to the arrangements made for the time spent between the father and the child in December/January nor the late arrival of the child at the commencement of the December period of time spent. The father says this:
… again shows that she has no understanding of the issues before her and gives completely contradictory statements… (Father’s submissions filed 13 February 2009, paragraph 11)
There is no inconsistency or contradiction in what her Honour said.
Her Honour set out the difficulties between the father and the child over Christmas and observed (in relation to the question of whether there should be any make up time):
… that is a matter which would be appropriately determined, either after the receipt of the family assessment report and if there is any further consideration of that matter during any contravention proceedings. (Reasons, 14 February 2008, paragraph 19)
The father goes on to complain that the Judge failed to make a determination on the “very issue” that was before her. We have found this complaint to be without substance when dealing with the father’s procedural fairness challenge. We have also already dealt with his assertion the trial Judge did not understand the telephone contact order and found that too to be without merit.
The father complains about the question of time lost because paragraph 2 of his application was adjourned to another date. Her Honour quite properly decided not to determine parts of his application until such time as the Family Assessment Report was prepared. The proceedings were adjourned to 18 March 2008 so that the question of the cost of the Family Assessment Report could be determined. The father was directed to file a Financial Statement in relation to that application. At the time of the hearing on 17 March 2008 he had not filed his Financial Statement.
The father sets out, in his submissions, a series of complaints he has in respect of the ICL. He claims firstly that she had failed to acknowledge she had been served with copies of his documents, despite being provided with an acknowledgment of service and stamped addressed return envelope, and secondly that the ICL had not filed an affidavit of the communications between her and the child.
At this point it is apposite to note there is of course no requirement that she do so. Section 68LA(6) of the Act provides:
Subject to subsection (7), the independent children’s lawyer:
(a)is not under an obligation to disclose to the court;
(b)cannot be required to disclose to the court;
any information that the child communicates to the independent children’s lawyer.
Subsection 68LA(7) of the Act provides that the ICL may disclose information communicated by the child if the ICL considers it is in the best interests of the child to do so.
The father complains that although the ICL showed concerns in relation to statements which had allegedly been made by the child, the ICL failed to set out the concerns that had been allegedly raised by the child. No doubt these concerns can be dealt with in the Family Assessment Report where the views of the child will be ascertained. Her Honour dealt with this issue by ordering a Family Assessment Report be prepared as soon as possible.
Her Honour’s orders demonstrate she was concerned about the Notice of Child Abuse and took urgent action in relation to it by ordering the Family Assessment Report.
The balance of the husband’s complaints under this topic include:
·complaints about the trial Judge’s treatment of his application to adduce evidence at the hearing of the tape recordings of telephone conversations with the child;
·assertion the trial Judge made a finding the recordings were “illegal”;
·complaint that her Honour permitted submissions to be made by counsel for the ICL and the mother when they had not filed material;
·complaint that the trial Judge had not read his affidavit material; and
·complaint about her Honour’s comments about not setting the proceedings down for hearing until determination of the pending appeal against the orders of Watt J.
Each of these complaints has been considered and rejected by us earlier in these reasons and found to lack merit. It is unnecessary we repeat our findings.
(c) asserted error in the exercise of discretion by the trial Judge in refusing to grant leave to institute contravention proceedings in respect of asserted breaches by the mother of orders associated with previous Christmas holiday time with the father (grounds 11, 12 and 13)
11.The judge erred in her judgement in stating that the mother’s behaviour did not have the effect referred to in the orders of Watt J.
12.The judge erred in her judgment when stating that there were no specifics of the allegations of contravention made.
13.The judge erred in not granting leave to the father to bring contravention proceedings against the mother in relation to the arrangements made for time spent between the father and the child in December 2007/January 2008 period.
The father asserted the trial Judge was in error in determining that matters associated with the previous Christmas holiday period amounted to substantial compliance with the parenting orders then in place and had the effect that the child’s time with the father had not been significantly compromised. He asserted her Honour was in error in making findings contained in paragraphs 8 and 9 of her reasons. In paragraph 8 of her reasons her Honour, referring to the father’s affidavit, explained:
In relation to the affidavit of 28 December 2007, that sets out some details in paragraphs 38 and onwards concerning correspondence between the father and the mother’s solicitors concerning arrangements to be made for the child to spend time with the father in the December-January school holidays.
Her Honour went on to record at paragraph 9 of her reasons:
It is conceded by the mother that the child was, in accordance with the orders, meant to travel on the Saturday but travelled on the Sunday. The correspondence indicated that the father agreed to that. His understanding was that the child would then spend an extra day with him at the end of the period of spending time with but that the mother had arranged for the child to return on the day that the order provided.
Her Honour’s finding on this topic is found in paragraph 10 and 11 of her reasons. There her Honour said:
In this sense those arrangements and the delay in making the notification of the arrangements in my view do not fall within the condition imposed by Justice Watt in his order of 13 November in that the actual behaviour by the mother on that occasion did not have the effect referred to in the orders of Justice Watt; namely, a question of substantial compliance with the parenting order, injunction or condition, in that the father’s time with and opportunities to communicate with the child have not been significantly compromised by that failure of the mother in relation to the notification or arrangements for the period of time spent.
That of course does not deal with the completely separate issue of any question of the child taking steps herself, to bring about and [sic] end to the period of time she was spending with the father on 24 December when the period of time she was spending with the father came to an end on that date rather than on 5 January or 6 January, as the father was requesting.
We discern no error by the trial Judge, in the exercise of her discretion, in finding in the circumstances recorded in paragraphs 8 and 9 of her reasons, that the complaint asserted did not fall outside the exceptions noted in Order 6 of Watt J’s order.
The father claims that her Honour’s observations at paragraph 13 of her reasons that:
There is no specific application in relation to a contravention which the father is alleging occurred as a result of that event.
again amounted to an error.
As discussed elsewhere in these reasons paragraph 13 must be read in conjunction with paragraph 12 of her Honour’s reasons. It must also be seen in the context of the events which occurred on 24 December 2007, details of which we have referred to earlier in these reasons. We note the father filed an application in a case seeking a recovery order, make up time and various other orders. The father also sought an order that leave be granted to enable him to file a contravention or contempt application in relation to the mother’s “on-going disregard” of the orders. The father sought that this application be dealt with on an ex parte basis.
As we have already explained, but again repeat, her Honour quite rightly observed that:
There is no specific application in relation to a contravention which the father is alleging occurred as a result of that event.
(d) asserted error in adjourning the father’s interlocutory applications (ground 14)
14.The judge erred in adjourning paragraphs 2, 3, 4, 5 and 6 of the father’s application to a further date.
At paragraph 11 of his written submissions the father complains about her Honour adjourning parts of his application to another date. Paragraph 2 of the father’s application, in relation to make up time, was adjourned to 18 March 2008.
As we noted earlier in these reasons, her Honour adjourned paragraph 3 (telephone contact), paragraph 4 (provision of a mobile phone), paragraph 5 (conditions of use and payment in relation to the mobile phone) and paragraph 6 (injunctive orders prohibiting the mother or her agents interfering with the mobile phone) of the father’s application for further consideration once the Family Assessment Report had been received.
In coming to her decision to adjourn these applications her Honour set out the difficulties which had occurred between the child and the father during Christmas contact which resulted in the child returning to the mother’s care. In considering whether there should be any make up time as sought by the father in paragraph 2 of his application her Honour observed:
… that is a matter which would be appropriately determined, either after the receipt of the family assessment report and if there is any further consideration of that matter during any contravention proceedings.
Similarly, her Honour, when considering the question of whether there should be any telephone contact between the father and the child, in respect of paragraph 3 of his application, said:
… it appears there are serious concerns about the nature of the relationship and the impact on the emotional wellbeing of the child concerning the relationship between the child and the father, and the father alleges between the child and the mother. In my view it is therefore not appropriate to make any further specific order in relation to telephone contact until such time as the wishes of the child and the attitude of the child have been ascertained. (Reasons, 14 February 2008, paragraph 22)
Further, her Honour when considering paragraphs 4, 5 and 6 of the father’s application, in relation to the provision of the child with a mobile telephone and the conditions in relation to the use of that telephone, said at paragraph 23:
… Again the question of the provision of a telephone for the purposes of telephone communication is a matter which relates to the emotional wellbeing and the relationship between the father and the child and must await the input of the child in relation to her wishes and an assessment of her emotional and psychological wellbeing.
There were questions surrounding the circumstances of the preceding Christmas contact between the father and the child which had not been determined. Her Honour quite properly in the context of this complex litigation ordered a Family Assessment Report and held in abeyance the father’s applications until there was more material upon which she could make a determination in the best interests of the child.
(e) asserted error in rejecting the father’s application for a judge to interview the child (ground 17)
17.The judge erred in stating that the interests of justice require that a judge not interview the child.
This complaint is set out at paragraph 17 of the father’s written submissions. The father asserts that it would have been appropriate for her Honour to have interviewed the child. He says the child was “almost 13 years old and advanced for her age” and would have been able to “provide details that would be valuable” in the decision making process.
At paragraph 26 of her Honour’s reasons she explained why she rejected the father’s application:
… This matter is not one in which it is appropriate for a judge to interview the child. A private interview between the judge and the child would not provide the same sort of professional qualified information which can be obtained by a family assessor suitably qualified and trained in interviewing children. ...
We see no error in the manner in which her Honour exercised her discretion. First, the application was made at an interlocutory stage of the proceedings when her Honour was case managing the matter. Any decision about a judicial interview at this stage of the proceedings was premature, and if such order was to be made at all, it would be one to be made by the trial Judge hearing the final proceedings. Further, as her Honour explained, she had ordered a Family Assessment Report by an expert who was suitably qualified and trained in interviewing children. The child’s views would be ascertained by that report writer and be before the Court.
Her Honour properly dismissed the father’s application for a judicial interview and maintained the order that the Family Assessment Report be prepared as soon as possible. This was a reasoned and reasonable exercise of her Honour’s discretion and demonstrates no error.
(f) grounds relating to the Notice of Child Abuse (grounds 18 and 19, grounds 3 and 4 second appeal)
18.The judged [sic] erred in stating that a family report had to be prepared before the Notice of Child Abuse, filed in October 2006, could be listed for hearing.
19.The judge erred in not treating the Notice of Child Abuse as an urgent matter, and one that could be heard as a separate listing.
3.The judge erred in not treating the Notice of Child Abuse as an urgent matter, and one that could be heard as a separate listing.
4.The judge erred in stating that a family report had to be prepared before the Notice of Child Abuse, filed in October 2007, could be listed for hearing.
The grounds are dealt with at paragraphs 15, 28, 29 and 36 of the father’s written submissions filed 13 February 2009 and paragraphs 3.8, 3.9, 5 and 6 of his written submissions filed 9 April 2009.
At paragraph 29 of his written submissions the father complains that at “no stage is reference made to the physical, emotional and psychological abuse” allegedly being perpetrated upon the child by the mother and her partner.
As a consequence of her Honour’s concerns for the welfare of the child she directed the Family Assessment Report be prepared as soon as possible. It was the matters raised by the father which caused her Honour to request the expedition of that material so the complaints alleged could be determined. Her Honour did not ignore the contents of the Notice of Child Abuse and acted appropriately in relation to the notification.
In support of his second appeal, at paragraph 3.8 of his written submissions filed 9 April 2009, the father complains that although her Honour said she was “satisfied that in the unusual circumstance of this matter it is not appropriate to deal with the same prior to the Family Assessment Report being prepared” she did not then go on to provide details or reasons of what, in her opinion, was so unusual about the matter or why it would not be appropriate to deal with the issues in the Notice of Child Abuse without the necessity of a Family Assessment Report.
Her Honour, at paragraph 6 of her reasons delivered on 17 March 2008, did consider the father’s request for a prompt hearing of the Notice of Child Abuse, which she said was connected to his application in a case, and concluded that it was not appropriate for this issue to be dealt with until the Family Assessment Report had been provided. Further, at paragraph 7 of the reasons, her Honour said:
The father asserts in his submissions that the alleged abuse is clear on the face of the documents. However, the notice of abuse itself is in some paragraphs in particularly general terms, and I am not satisfied that those matters should be separately determined aside from the question of determining generally what is in the best interests of the child in these proceedings…
Her Honour then adjourned the father’s application in a case to be dealt with, on a date to be advised, after the receipt of the Family Assessment Report.
At paragraph 3.9 the father complains that the trial Judge “neglects the fact that the Notice of Child Abuse had an accompanying Affidavit … in which the details of the abuse allegations were explained”. Further the father complains that the trial Judge ignored the best interests of the child by ignoring the child’s repeated statements that she was in “fear of her safety”, and in doing so her Honour showed bias and prejudice against the father.
In ground 4 of his second appeal the father again complains the trial Judge was in error in ordering the Family Assessment Report prior to dealing with the Notice of Child Abuse.
It is important to note that a Notice of Child Abuse in itself is not a cause of action. The Full Court in Feranti & Connor [2008] FamCAFC 192 at paragraph 50 said:
…While such a Notice might initiate investigation by State welfare authorities or others, in the context of the exercise by the Family Court of its jurisdiction in relation to children, an issue of such a Notice is a step taken in proceedings seeking parenting orders. The matter with which such a notice deals will be assessed with all other matters that must be addressed before making a parenting order.
Her Honour’s judgment of 17 March 2008 was an ex tempore one given in an interlocutory application. We have earlier in these reasons discussed appellate consideration of ex tempore reasons. Insofar as the Notice of Child Abuse is concerned, we have already referred to the fact (which should have been well known by the father as the statement was made in another appeal brought by him) the Notice of Child Abuse was not a separate cause of action. It was a matter to be addressed when making parenting orders after the completion of the Family Assessment Report. Her Honour’s path of reasoning is clear and discloses no error of principle.
Second appeal – balance of grounds
(a) asserted bias by the trial Judge/denial of natural justice (grounds 1 and 6)
1.There has been a miscarriage of justice due to the bias and prejudice of the judge against the father.
6.The judge erred in not providing details of the authorities that she alluded to in her judgment.
In terms of these grounds the father relies on paragraphs 32, 33, 34, 35 and 36 of his written submissions filed 13 February 2009 and paragraphs 3 and 9 of his written submissions filed 9 April 2009.
The father complains, in paragraphs 32 and 33 of his submissions, that her Honour adjourned the proceedings to 18 March 2008 which was subsequently brought forward to 17 March 2008 but failed to order the filing of a response by the mother or the ICL and that she did not deal with the application on an undefended basis.
What was clear was that her Honour had expedited the preparation of a Family Assessment Report. She had properly declined the father’s request that a judge interview the child. The child had left the care of the father in dramatic circumstances over the Christmas period. Her Honour had an obligation to put in place arrangements (albeit interim arrangements) that were in the child’s best interests and she took steps to have before her appropriate material upon which to make that interim determination.
The father failed to note that her Honour had, during the hearing before her on 14 February 2008 permitted the mother to make an oral response, and had recorded the ICL’s position in respect of parts of the father’s application which concerned the ICL. While her Honour may have ordered the mother to file affidavit material in support of her oral response, it was not essential she do so in circumstances where the matter would not come back before her until the Family Assessment Report had been prepared. We discern no error of principle by her Honour’s failure to make procedural orders for the filing of affidavits.
The father complains that her Honour failed to “elaborate or explain what the ‘usual authorities’ she was referring to [in her reasons], nor how or why she was relying upon them in making her decision, nor how they related to the proceedings before her”.
We have already referred to Re F: Litigants in Person Guidelines (another appeal involving the father). In that decision the Full Court set out guidelines for judicial officers conducting a trial. This hearing was an interlocutory hearing at which her Honour appropriately gave oral reasons. There was, in the circumstances of the applications before her, no requirement she cite authority for what were essentially discretionary procedural orders.
(b) asserted error in making order that the father pay half of the costs of the Family Assessment Report (grounds 2 and 5)
2.The judge erred in making the order that the father make a payment within 7 days of the conclusion of the appeal proceedings filed on 12 March 2008.
5.The judge erred in making orders that would be inappropriate if the outcome of the father’s appeal filed 12 March 2008 is successful.
These grounds of appeal are dealt with at paragraphs 34 and 36 of the father’s written submissions filed 13 February 2009 and paragraphs 4, 5.1 (which refers to paragraphs 3.8 and 3.9), 5.2, 5.3, 7.1, 7.2 and 7.3 of the father’s written submissions filed 9 April 2009.
At paragraph 34 of his written submissions filed 13 February 2009 the father complains that despite the trial Judge being made aware that he had filed an appeal her Honour “refused to follow her own imposed guidelines and made decisions which could be negated by a successful appeal of her own orders”. Further, at paragraph 36 of his written submissions filed 13 February 2009, the father complains that her Honour’s order requiring him to pay half the costs of the Family Assessment Report within 7 days of the conclusion of the appeal made no provision for the result of the appeal proceedings. He asserts this required him to pay the funds regardless of whether he was successful or not. The father asserts at paragraph 7.2 of his written submissions filed 9 April 2009 that:
… A successful appeal of the orders of 14 February 2008 may totally negate the orders that were made that day. …
The Family Law Rules 2004 provide that each of the parties is required to meet half the costs of the report (see rule 15.47). Her Honour’s order was made in circumstances where she ordered the father to file a Financial Statement and he had failed to comply with that order. We are not satisfied the father had established any error by the trial Judge in these circumstances.
At paragraph 34 the father complains that despite the trial Judge being aware that he had filed an appeal against the orders of 14 February 2008 and her Honour saying she would not make any decision which may be negated by a successful appeal of Watt J’s orders of 12 and 13 November 2007, her Honour made decisions which could be negated by a successful appeal of her own orders.
At paragraph 5.2 of his written submissions filed 9 April 2009 the father complains the “judge has, and continues to, disregard the child’s interests by not progressing the matter further”.
Her Honour did not err in making orders pending the outcome of the father’s appeal. It was an appropriate exercise of her Honour’s discretion. The orders her Honour made were appropriate because they enabled the cost of the Family Assessment Report to be met and advanced the matter by the Family Assessment Report being prepared. The order adjourning the father’s applications to another date was also appropriate because, as we have discussed elsewhere in our reasons, it enabled appropriate evidence to be put before the Court to determine the applications.
(c) asserted error in the exercise of discretion in refusing to stay the orders of 14 February 2008 pending determination of the appeal against those orders (ground 7)
7.The judge erred in not making any orders in relation to the father’s oral application for a stay of prior orders pending the determination of the father’s appeal.
There is some confusion about this complaint made by the father. Before her Honour he made an oral application that, pending the hearing of the appeal which he had filed against her Honour’s orders of 14 February 2008, the orders be “set aside”. He did not seek the orders be stayed pending the hearing of the appeal. However, clearly affording procedural fairness to the father, the trial Judge treated his application as one for a stay.
This ground of appeal is dealt with in paragraphs 32, 34, 35 and 36 of the father’s written submissions filed on 13 February 2009 and paragraph 8 of his written submissions filed 9 April 2009, which appears to be a repetition of those earlier submissions.
At paragraph 34 of his written submissions the father complains that he made her Honour aware that he had filed an appeal. At lines 3 to 6, page 3 of the transcript of 17 March 2008 the father said:
Yes, I’m sorry. I should also make known to your Honour that I have filed a notice of appeal regarding the orders that you made on the 14 February. I did so last week after receiving your reasons for judgment. I seek that you set aside those orders pending the determination of the appeal. …
At line 41 on page 4 of the transcript her Honour said:
Well, there’s no application for a stay. You are seeking to have the orders set aside on the appeal, presumably.
At paragraph 2 of her Honours reasons for judgment delivered on 17 March 2008 she said:
One of those orders is that the father file and serve within seven days a full Statement of Financial Circumstances, providing all information concerning his financial circumstances so the question of the payment of the costs of the family assessment can be determined.
Her Honour goes on at paragraph 3:
He has not complied with that order. He has filed a Notice of Appeal from that order, as well as other orders I made on 14 February. He has not sought any application by way of a stay, in the sense that he has not filed any documents. He appears to make an oral application for a stay of that order before me this morning.
Further at paragraph 4 her Honour said:
The questions of the consideration of a stay arise. In this case the Notice of Appeal sets out what purport to be some 19 grounds, none of which on the face of it would appear to be likely to be successful in relation to the procedural order that I made in relation to the question of the costs of the preparation of the family assessment. I am not satisfied that it is appropriate, taking into account the usual authorities, to stay that order.
Her Honour did not err by not making orders to set aside or stay the orders of 14 February 2008 pending the outcome of the appeal. Her Honour considered the father’s oral application for a stay of the orders and concluded that she could not be satisfied that it was appropriate she do so. While her Honour did not give lengthy reasons for refusing the stay, it is clear she considered the most significant matter to be the merits of the father’s grounds of appeal. In the exercise of her discretion she considered the grounds did not, as we have found, demonstrate merit, and accordingly refused the stay. She also very appropriately took into account that the father was in breach of her order to file a Financial Statement - a relevant matter to the exercise of her discretion. We find no merit in the father’s complaints about the exercise of discretion by the trial Judge in refusing to stay her orders.
Was leave to appeal required?
Section 94AA of the Act, read with Regulation 15A(1) of the Family Law Regulations 1984 (Cth), prescribes the circumstances in which leave to appeal an order is required. Effectively leave is required to appeal all interlocutory orders other than those “in relation to a child welfare matter”. The expression “child welfare matter” is defined by Regulation 15A(2) as being a matter relating to the person or persons with whom a child is to live, or spend time with or communicate, or any other aspect of parental responsibility.
It is unnecessary to consider whether the orders made by her Honour fall within the definition of “a child welfare matter”. As will be apparent, we have found no merit in any of the father’s complaints. Accordingly, if leave to appeal was required, it would be refused.
Application to adduce further evidence
On 13 February 2009 the father filed an application seeking orders that he be allowed to adduce further evidence in relation to the hearing of these appeals. Counsel for the ICL opposed the Full Court admitting further evidence.
The evidence which the father seeks to adduce he says:
… is in support of paragraph 7 of the orders that were sought in that application, namely “The currently appointed Child Representative be removed from involvement in this matter”, and paragraph 8 which sought “In place of a family report being prepared, or another Child Representative being appointed, there be a Judicial interview conducted with the child to ascertain her wishes and desires in relation to the issues of residence”. (Father’s affidavit filed 13 February 2009, paragraph 3)
In support of that application the father relied on his affidavit filed and sworn on 13 February 2009.
The affidavit of the father contained a transcript of a telephone conversation he allegedly recorded between himself and the child on 20 October 2007.
The father then deposes at paragraph 6 of his affidavit:
Since the date of the hearing of the proceedings before Dawe J on 14 February 2008 and subsequently on 17 March 2008, there have been further developments and issues that have arisen that would amplify the evidence that I had sought to provide to support my application filed 27 December 2007.
The affidavit then goes on to set out events which occurred subsequent to the orders made by Dawe J in February and March 2008.
Section 93A(2) of the Act gives this Court the discretion to receive further evidence. In relation to the admission of further evidence in accordance with this section of the Act the High Court in CDJ v VAJ (1998) 197 CLR 172 said at paragraph 104:
In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion. [footnotes omitted]
However, this broad discretion must be “exercised judicially” and for the purpose of avoiding an injustice. Matters which are relevant to the Court’s exercise of its discretion include:
·the need for finality of litigation;
·whether the evidence was available at the trial;
·whether the failure to call the evidence at that trial was a result of a wilful omission or innocent mistake;
·whether the further evidence is disputed;
·whether the evidence relates to matters occurring after the trial; and
·the nature of the case.
Accordingly, in those circumstances, some of the evidence which the father (a very experienced litigant) seeks to adduce, was evidence which the father had available to him which he failed to place before the trial Judge at the date of the hearing. In our view, justice does not require that the father have a further opportunity to adduce that evidence before this Court.
Further the father’s assertion in his affidavit filed on 13 February 2009 that “further developments and issues that have arisen” which he seeks to rely upon, has no bearing on the appeal before us. Further, the material upon which the father seeks to rely is contentious.
Accordingly we propose to dismiss the father’s application filed on 13 February 2009 to adduce further evidence.
Conclusions
Our examination of the father’s proposed grounds of appeal in both the first and second appeal disclose no error of principle by the trial Judge. Further we are satisfied it is not necessary to grant leave to avoid a substantial injustice. Accordingly, the father’s application for leave in respect of the two appeals will be dismissed.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 20 November 2009
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