Fierro & Fierro (No 4)
[2022] FedCFamC1A 208
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fierro & Fierro (No 4) [2022] FedCFamC1A 208
Appeal from: Fierro & Fierro (No 4) [2022] FedCFamC1F 687 Appeal number: NAA 204 of 2022 File number: SYC 7639 of 2021 Judgment of: Austin, Rees & Kari JJ Date of judgment: 7 December 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from a decision dismissing his application in relation to the parenting of his half-sister – Where the appellant’s application in those proceedings was dismissed pursuant to the rule in Rice and Asplund (1979) FLC 90-725 – Where the appellant contends there was bias or apprehended bias on the part of the primary judge – Where the primary judge correctly considered whether it was in the best interests of the child to permit further litigation – Where the appellant contends the primary judge limited the appellant’s application at trial to communication – Weight challenge –– Where the appellant failed to identify specific evidence to which the primary judge failed to give proper consideration – Where much of the material the appellant asserts the primary judge did not consider is irrelevant – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought the recusal of the appeal registrar – Where the registrar’s involvement in the appeal is procedural and the review of the decision has no utility – Application dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the evidence sought to be adduced has no independent evidentiary value – Where the late filing of the application denies the respondents the right to procedural fairness – Application dismissed.
Legislation: Evidence Act 1995 (Cth) Pt 3.2
Family Law Act 1975 (Cth) Pt VII, Div 12A, s 69ZT(1)(c), 117(2A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(c), 32(5)(b), 100(2)
Federal Circuit and Family Court of Australia Rules 2021 (Cth) r 13.39(1)
Cases cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 76
De Winter and De Winter (1979) FLC 90-605
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 84 Date of hearing: 7 December 2022 Place: Melbourne (via videolink) The Appellant: Litigant in person The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Trezise Solicitor for the Second Respondent: Dobson Mitchell Allport Solicitor for the Independent Children's Lawyer: Tasmania Legal Aid ORDERS
NAA 204 of 2022
SYC 7639 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FIERRO
Appellant
AND: MR A FIERRO
First Respondent
MS BIEN
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN, REES & KARI JJ
DATE OF ORDER:
7 December 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 23 November 2022 is dismissed.
2.The Application in an Appeal filed on 2 December 2022 is dismissed.
3.The Appeal is dismissed.
4.The appellant shall pay the second respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $10,000.
5.The appellant shall pay the Independent Children’s Lawyer’s party/party costs of and incidental to the appeal, fixed in the sum of $2,927.07.
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 a pseudonym Fierro & Fierro (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
REES J:
Mr Fierro (“the appellant”) appeals from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 1), dismissing his parenting application in relation to the parenting of his half-sister (“the child”) who is now aged 14 years.
The first respondent is the father of the appellant and the child.
The second respondent is the step-mother of the appellant and the mother of the child.
An Independent Children’s Lawyer (“ICL”) has been appointed for the child.
Final orders were made by consent on 21 May 2021 which provided, inter alia, that the child live with her parents, the first and second respondents, as agreed and which limited the communication between the appellant and the child.
The appellant was the applicant in those proceedings and gave his consent to the final orders.
On 20 October 2021, the appellant filed an Initiating Application seeking different parenting orders. That application was amended subsequently and, at the time of the hearing before the primary judge, the appellant sought orders which, in summary, provided for the child to spend only supervised time with the first respondent (her father); that the first respondent not have parental responsibility for the child and making provisions for contact between the appellant and the child, at her home, on giving reasonable notice to the first and second respondents.
That application was dismissed in reliance upon the basis commonly referred to as the principle or rule in Rice and Asplund (1979) FLC 90-725 (“Rice & Asplund”).
Before turning to the substantive appeal, it is necessary to deal with an application filed by the appellant on 23 November 2022 in which he seeks to review orders made by a registrar on 17 November 2022 and to set aside all orders made by that registrar.
Because the appeal hearing had already been fixed when the application was filed, the provisions of ss 32(3)(c), 32(5)(b) and 100(2) of the Federal Circuit & Family Court of Australia Act 2021 (Cth) permit that application be heard by a Full Court and therefore that application has been listed before us for determination.
The application before the registrar was in the following terms:
1. Extension of time – Appellant file transcript on or before 17 Nov 2022.
2. [The registrar] is recused.
(Appellant’s Amended Application in an Appeal dated 7 November 2022, p 2)
(As per the original)
The application for review proceeds as a hearing de novo. Before us, the appellant relies upon an affidavit sworn by him on 22 November 2022 and written submissions filed on 23 November 2022.
The appellant deposed:
8.At [25] of the judgment the registrar misleads as to the true events, “in any event, following the anticipated liaison with chambers of the assigned judge, the applicant’s submissions were accepted for filing…” That statement is so misleading as nothing was accepted for filing immediately after the registrar’s liaison with chambers it took a new registrar which came in to fix things accept the submissions document for filing and a lot of correspondence and formal complaints.
9.Yet another example of the registrar sitting up high and twisting things around for the benefit of a party. In this case she has twisted the scene to suit herself. In the conduct complained of she twisted things for the benefit of the respondents.
(Appellant’s Affidavit sworn 22 November 2022)
(Emphasis in original)
The affidavit contains no evidence relevant to the issue of recusal.
The registrar’s involvement in the appeal is procedural and directed to readying the appeal for hearing. That role has been completed. I note that this appeal was filed on 19 September 2022 and was heard today, 7 December 2022.
There will be no further involvement by the registrar. In those circumstances, the review of the registrar’s decision has no utility and it will be dismissed.
On 2 December 2022, the appellant filed a further Application in an Appeal seeking to adduce further evidence. The evidence upon which the appellant sought to rely was contained in an affidavit sworn by him on 2 December 2022. That application will be dismissed for the reasons set out below and in accordance with the principles laid down by the High Court in CDJ & VAJ (1998) 197 CLR 172 at [114] where their Honours stated:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
Although these are proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) and the provisions of Pt 3.2 of the Evidence Act 1995 (Cth), the provisions dealing with hearsay evidence, do not apply (s 69ZT(1)(c)), it is nevertheless necessary for evidence, which is sought to be adduced, to be cogent and capable of being given weight. The appellant seeks to rely on asserted conversations with a third party. The 34 pages of transcripts of those conversations are annexed to the affidavit. They are not verified by an affidavit of the person who transcribed them and the recordings, from which the transcripts must have been prepared, are not in evidence. The transcripts could be given no evidentiary weight.
The balance of the affidavit is largely the appellant’s commentary on the transcripts and on previous events which has no independent evidentiary value.
The third party is the brother of the second respondent. It is clear that the third party has been known to the appellant for some considerable time and, in any event, well before the primary proceedings. It would have been open to the appellant to seek to adduce evidence from the third party, in an admissible form, in the primary proceedings, He did not do so.
Further, the application was filed on Friday before the appeal was listed for the following Wednesday.
Rule 13.39(1) of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”), provides that an application for the court to receive further evidence must be filed at least 14 days before the date of the commencement of the sittings in which the appeal is listed for hearing.
The late filing of the material leaves no opportunity for the respondents to the appeal to meet that evidence and, if it were admitted, it would be necessary for the appeal to be adjourned to give them that opportunity. Procedural fairness is not the right of the appellant alone but must also be extended to the respondents and the interests of the administration of justice require that hearings proceed in an orderly way and that resources not be wasted. That is particularly so when this appeal is to be heard by three judges and there is no opportunity, because of the late filing, to call up another appeal to be heard on the allocated date.
I turn now to deal with the Grounds of Appeal. It is appropriate that I firstly consider the fifth ground which asserts actual or apprehended bias.
Ground 5
Bias/Apprehended Bias – The Court’s judgement was tainted by bias or the apprehension of bias.
In his Summary of Argument, the appellant cites specific findings of the primary judge that he asserts give rise to either a finding of actual bias or a finding of apprehended bias.
His primary submission is that the primary judge was actually biased. As the Full Court stated in Newett & Newett (No 2) (2021) FLC 94-051:
57.The test for actual bias requires the appellant to establish that the judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] and [176]).
58.The relevant principles were helpfully summarised in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]–[70]:
68.A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.
…
70. As Gleeson CJ and Gummow J observed in that case at [71]:
“The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion.”
59.… [The appellant’s] own perception of the primary judge’s conduct is not sufficient and neither is the fact that the proceedings have not gone the way [the appellant] believes they should have.
The specific matters upon which the appellant relies to establish actual bias are set out in his Summary of Argument commenced at paragraph 49.
Firstly, he states, rhetorically we assume:
49.What would cause the primary judge to ignore or overlook evidence of violence; emotional/psychological abuse; fraud; perjury and the interference with the administration of justice?
(Appellant’s Summary of Argument filed 17 November 2022)
As I explain in dealing with Ground 3, I do not accept the appellant’s premise that the primary judge ignored or overlooked evidence as the appellant asserts.
The appellant next contends that the primary judge incorrectly recounted the outcome of a procedural hearing on 20 July 2022. The primary judge stated:
40.On 20 July 2022, Smith J dismissed the applicant’s Contravention Application and adjourned the respondent’s oral applications for summary dismissal of the outstanding Contempt Applications to 3 August 2022, on the basis that they were frivolous, and/or vexatious, and/or abuse of process, and or as having no reasonable likelihood of success.
I accept that the primary judge’s summary of that hearing is incomplete. The orders made on 20 July 2022, relevantly, provide:
1.The Contravention Application filed by the Applicant on 16 March 2022 is withdrawn and is dismissed by consent, subject to the question of costs.
2.The Contempt Applications filed 11 February 2022 and 15 February 2022 by the Applicant be adjourned to 10.00am on 3 August 2022 for hearing of the First Respondent and Second Respondent’s oral applications for summary dismissal as frivolous and / or vexatious, and or an abuse of process, and / or as having no reasonable likelihood of success, pursuant to Chapter 10 Part 10.3 of the Rules.
(Emphasis in original)
In De Winter and De Winter (1979) FLC 90-605, Gibbs J said at 78,092:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p. 627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.
…
The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
The error of which the appellant complains was made in the context of the primary judge’s recounting of the procedural history of the matter over 20 paragraphs in the reasons.
I do not accept that the primary judge’s incomplete recitation of the effect of the orders of 20 July 2022 affected the final determination and I do not accept it to be evidence of actual bias.
The appellant thirdly relies on the following passage at [44] of the reasons, where the primary judge stated:
44.The Court file reflects that there has been ninety five separate documents filed and forty nine documents filed in SYC7538/2021 at significant cost to the second respondent, the ICL and the public.
There is no challenge to the accuracy of that statement. It cannot be asserted that the statement is evidence that the primary judge is not open to persuasion.
I do not accept that statement to be evidence of the actual bias of the primary judge where the consideration before the primary judge was whether to permit further litigation to continue.
The fourth matter raised by the appellant is the statement at [84]:
Whilst I am not obliged to consider the application of s 45A of the Act, the nature of the allegations made by the applicant, the sheer volume of documents filed and the scant regard to affidavit material containing evidence rather than scandalous allegations, may well raise an arguable case that the conduct of the applicant may well be considered as vexatious.
I do not accept that statement to be evidence of actual bias where the consideration before the primary judge was whether to permit further litigation to continue. Neither does the appellant challenge the accuracy of the statement.
The appellant fifthly refers to [66]–[67] which he asserts to be evidence of child sexual assault or severe physical violence. The primary judge stated:
The first respondent denies that he has any criminal conviction in [Country G]. In any event, it is difficult to see the relevance of proceedings involving the first respondent in [Country G] a number of years before the child was born.
The passage of the first respondent’s affidavit which is set out at [66] is not evidence of those matters as asserted by the appellant.
I do not accept that the passage relied on can be construed, as the appellant submits, as evidence of bias.
The final contention is that the failure of the primary judge to give the weight expected by the appellant to the evidence that a child of an earlier relationship had been removed from the care of the first respondent, demonstrates that the primary judge was committed to pre-judgement.
There was no admissible evidence before the primary judge in relation to those events which occurred in Country G. The first respondent deposed that his child was unfairly removed in proceedings in which he was unrepresented and not told of the accusations he faced. It is unclear when the relevant proceedings occurred but the first respondent deposed that it was 12 years ago. The primary judge dealt with that submission at [66] and the appellant has not demonstrated that the evidence, such as it was, mandated a different conclusion.
I am not satisfied that the primary judge demonstrated bias.
The test to be applied in relation to an allegation of apprehended bias is a different test and it is properly enunciated in the appellant’s Summary of Argument.
However, the appellant again relies on the primary judge’s failure to give to specified evidence the weight for which the appellant contends, a contention that I have rejected when dealing with other grounds.
The challenge on the basis of actual or apprehended bias fails and I will turn to consider the other grounds of appeal.
Ground 1
Incorrect finding of fact – The Court erred in finding that the integrity of the consent orders were [sic] not in issue, or that there were no orders sought that challenged the care arrangements.
The primary judge was clearly aware that the appellant challenged the integrity of the consent orders as was made clear in the appellant’s Case Summary.
Before the primary judge, the appellant relied on medical evidence in support of his submission, found in his Case Summary document, that:
Medical circumstances subsisting at time the consent orders entered into – applicant unfit for trial – loss of limbs – down for 1 year – had to learn how to walk again (Exhibit MED1).
(Appellant’s Case Summary Document filed 17 August 2022, p. 4)
The primary judge found:
51.The applicant relied upon a medical report from [Dr E] that was used in proceedings in the Supreme Court of New South Wales between the applicant and the Legal Profession Admission Board, concerning a decision made to remove the applicant from the list of legal practitioners able to provide legal advice.
52.The report goes no further than a request that the applicant be able to attend court hearings by video link rather than a requirement of personal attendance. A further report from a general practitioner dated 18 June 2021, advises that the applicant did not have a definitive diagnosis and given that his prognosis was uncertain he was unfit for court or work and therefor unfit to travel interstate to a hearing in [City J].
…
58.The order was made by consent and there is no evidence presented by the applicant that suggests his ability to consent to an order or to understand the nature and consequences of the proceedings, was in any way impacted by his underlying medical condition.
59.I do not consider that there is any evidence which would suggest that the applicant was at a disadvantage in the proceedings and in any event, if such a circumstance existed, the appropriate course of action would have been to consider an appeal rather than the filing of an Initiating Application only a few months after the proceedings were resolved.
The findings of the primary judge accurately reflect the evidence upon which the appellant relied.
There is no merit in this ground.
Ground 2
Incorrect finding of fact – The Court inappropriately limited the scope of the orders to exclude the amendments of 6 April 2022 and incorrectly held that the appellant’s application was an application for mere communication to spend time with the child and in doing so erred in law.
The appellant, before the primary judge, relied on an Further Amended Initiating Application which he filed on 6 April 2022 wherein he sought orders in the following terms:
…
2.THE FIRST RESPONDENT HAS SUPERVISED VISITS WITH THE CHILD ONLY AND NO PARENTAL RESPONSIBILITY
3.IN THE ALTERNATIVE TO (2), AN ORDER FOR SUPERVISION OF THE CHILD
4.THE FIRST RESPONDENT IS PROHIBITED FROM DENIGRATING [THE APPELLANT] AND [MR C] TO THE CHILD OR ANYWHERE CHILD MAY PERCEIVE SAME
5.THE FIRST RESPONDENT IS PROHIBITED FROM DENIGRATING THE CHILD’S OTHER FAMILY MEMBERS
6.THE FIRST RESPONDENT ACCEPTS AN UNDERTAKING TO THE COURT THAT IT WILL NOT DENIGRATE [THE APPELLANT], TO THE CHILD OR ANYWHERE THE CHILD MAY PERCEIVE SAME
7.THE FIRST RESPONDENT ATTEND THE RELEVANT THERAPEUTIC OR TREATMENT PROGRAM
(Appellant’s Further Amended Initiating Application filed 6 April 2022)
(As per the original)
The primary judge was at pains to identify with the appellant the effect of the orders he sought as appears from the Transcript 19 August 2022, p. 15 to 18.
At p.16 lines 30–40 of the Transcript 19 August 2022:
HIS HONOUR: … So then, the issue though is not that you really seek an order that the child be removed from the care of [the first respondent] or, indeed, [the second respondent], but rather, that you want to be able to communicate with the child. Is that what it is?
[THE APPELLANT]: Well, it’s both, your Honour. As I said, I don’t – it’s both.
HIS HONOUR: But where? It’s not a matter of both. No, no.
[THE APPELLANT]: The logistics of it, I was leaving up to the ICL and the professionals because I don’t know the logistics of that.
At p.17 lines 20–38 of the Transcript 19 August 2022:
HIS HONOUR: So it is not really that you want the child removed from the primary care of her parents. It’s – because you don’t make any proposal about that, and you accept there would be no circumstance where the child is likely to come into your primary care, so it’s really back to square one. You want to be able to communicate with the child. Is that – is that where we’re back to?
[THE APPELLANT]: No, your Honour, no.
HIS HONOUR: Well then, I don’t know - - -
[THE APPELLANT]: As I said, I don’t have - - -
HIS HONOUR: [to the appellant], I have no idea what it is that you want. I’m sorry. I thought that I did. I thought you wanted orders to be able to communicate with the child.
[THE APPELLANT]: I want – yes, that is essentially – of course, yes, that is, but also the protection of her.
And at p.18 lines 7–20 of the Transcript 19 August 2022:
HIS HONOUR: The case would be on the application that you filed, not on something else, but on the orders that you seek.
[THE APPELLANT]: Yes, your Honour.
HIS HONOUR: The gravamen of those orders is an order that you want to be able to communicate with [the child].
[THE APPELLANT]: Contact and communication. Yes, your Honour.
HIS HONOUR: Contact and communication. All right. So that’s what it’s about, isn’t it?
[THE APPELLANT]: Yes, of course.
The appellant has not established that the primary judge either inappropriately limited the scope of the application or that he misunderstood the scope of the application.
In any event, his Honour was considering whether it would be appropriate, having regard to the best interests of the child, to allow further proceedings in relation to her parenting to be continued. The relevant issue for consideration was not the precise nature of the orders sought by the appellant but whether it was appropriate to allow any further parenting proceedings.
This ground fails.
Ground 3
Error of law – Failure to take into account relevant considerations – The court failed to properly take into account (i) The Appellant’s Written and oral Submissions of 17 August 2022; (ii) The Affidavits of 11 April 2022 and 27 July 022 (“The Primary Affidavits”); and (iii) the Excluded Material (see [5]) and in doing so erred in law and therefore any finding of fact with regard to material change including the ultimate judgement dismissing the applicant’s initiating application of 20 October 2021 without proper consideration of the same constitute errors of law.
The appellant’s written submissions dated 17 August 2022 were clearly before the primary judge.
In those submissions, the appellant indicates that he relies on his affidavit sworn 27 July 2022 and an affidavit sworn by him on 8 April 2022 and filed 11 April 2022. At p.22 of the Transcript, the primary judge is referred by the appellant to specific portions of the affidavit sworn 27 July 2022 and elsewhere the Transcript records discussion between the appellant and the primary judge of the written submissions.
The appellant’s tender bundle, referred to as “the Excluded Material” is material which, although it was before the primary judge, was excluded from the Appeal Book and is contained in a supplementary document of 446 pages. That material was also clearly before the primary judge as there are a number of references to the material in the Transcript, for example at p.8, p.19 and p.20.
The assertion that the primary judge failed to consider that material is not made out.
If the appellant’s contention is that the primary judge gave insufficient weight to the material upon which he sought to rely, then he must demonstrate that the failure to give adequate weight to relevant evidence amounts to a failure to exercise the discretion entrusted to the court (Mallett v Mallett (1984) 156 CLR 605 at 614, Gibbs CJ citing with approval the statement of Latham CJ in Lovell v Lovell (1950) 81 CLR 513).
In Gronow & Gronow (1979) 144 CLR 513, Stephen J opined, commencing at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
The appellant has not identified any specific evidence to which he asserts that the primary judge failed to give proper consideration. Nor does the Transcript reflect the appellant drawing the attention of the primary judge to specific portions of those documents, other than to specified paragraphs of his affidavits and documents contained in the Excluded Material which relate to his medical condition.
In relation to the Excluded Material, much of that material is irrelevant to the consideration before the primary judge. For example, a volume of material relating to an assault on the second respondent’s sister and the sister’s immigration difficulties; voluminous telephone records and extensive email and text communications between the appellant and various persons, some of whom are not parties to these proceedings and an audio recording with an unidentified person.
The appellant has failed to demonstrate that the primary judge did not give adequate weight to relevant evidence and this ground must fail.
Ground 4
Breach of Procedural Fairness/Natural Justice – The Court, in not properly considering the primary affidavits and the excluded material, or alternatively in considering the incomplete primary affidavits without the excluded material denied the applicant procedural fairness and natural justice.
This ground is conflated with the previous ground. Since the appellant has not demonstrated that the primary judge did not properly consider relevant material, the complaint that, in so failing he denied the appellant procedural fairness, cannot succeed.
Ground 6
Taking into account irrelevant considerations – The Court took into account the submissions of a biased ICL of which an application for the ICL’s recusal was extant.
This ground can be dealt with shortly. In the course of his submissions before the primary judge, the appellant withdrew his application for the dismissal of the ICL (Transcript 19 August 2021, p.36 line 27).
This ground fails.
Ground 7
Breach of Procedural Fairness/Natural Justice – The Court did not permit the appellant to pursue an extant granted application to further serve a subpoena overseas for the first respondent’s child abuse charges or convictions in circumstances where His Honour McGuire J had ordered that the matter be resolved as soon as practicable on 15 June 2022 and in circumstances where the Court had already sent a formal request (Exhibit ARG1) pursuant to rule 6.28 of the rules.
Whilst I accept that the material which the appellant sought from Country C might have been relevant in a substantive parenting hearing, that material was not necessary for the determination of the Rice & Asplund issue.
This ground fails.
Ground 8
Wednesbury Unreasonableness – The Court’s judgement overlooked or ignored evidence of the respondent’s child abuse; fraud; perjury; interfering with the administration of justice; violence; physical and emotional abuse encapsulated in the primary Affidavits and the excluded material and was therefore manifestly unreasonable, unjust and absurd.
I apprehend that the appellant relies on the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 where the Court of Appeal held at [228]:
… If, in the statute conferring the discretion, there is to be found, expressly or by implication, matters to which the authority exercising the discretion ought to have regard, then, in exercising the discretion, they must have regard to those matters.
However, as the Court of Appeal made clear in that case, it was dealing with a statute which conferred administrative rather than judicial power. I am, here, concerned with the exercise of judicial discretion.
Nevertheless, I will construe the ground as a contention that the primary judge failed to have regard to relevant evidence.
I have already dealt, in Ground 4, with the appellant’s contention that the primary judge did no properly consider specified material. I am unable to find, in the appellant’s Summary of Argument, any reference to a statutory provision to which the primary judge failed to have regard.
If, in fact, the appellant, by this ground, contends that the result was manifestly unreasonable, then it does no more than restate previous grounds and raises no new matters for consideration.
This ground fails.
COSTS
Turning then to the question of costs, the appeal has been wholly unsuccessful. The question of costs is to be determined in accordance with s 117(2A) of the Act, and costs should be awarded in favour of the second respondent and the ICL as they claim, that is, the costs should be awarded as to $10,000 to the second respondent and as to $2,927.07 to the ICL.
KARI J:
I agree with the reasons articulated by Rees J and I support the making of orders as her Honour proposed.
AUSTIN J:
I also agree with the orders proposed and the reasons given by Rees J. The orders of the Full Court will therefore be as follows:
(1)The Application in an Appeal filed on 23 November 2022 is dismissed.
(2)The Application in an Appeal filed on 2 December 2022 is dismissed.
(3)The Appeal is dismissed.
(4)The appellant shall pay the second respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $10,000.
(5)The appellant shall pay the Independent Children’s Lawyer’s party/party costs of and incidental of the appeal, fixed in the sum of $2,927.07.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Austin, Rees and Kari. Associate:
Dated: 16 December 2022
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