Gambetto & Farrelli (No 2)
[2022] FedCFamC1A 202
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Gambetto & Farrelli (No 2) [2022] FedCFamC1A 202
Appeal from: Gambetto & Farrelli (No 6) [2022] FedCFamC2F 1007 Appeal number: NAA 187 of 2022 File number: SYC 4559 of 2021 Judgment of: AUSTIN J Date of judgment: 9 December 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from orders dismissing his Application for Review of a registrar’s decision and an application to set aside interim parenting orders and seeks leave to appeal from an order dismissing his application to review another decision out of time – Procedural fairness – Where there can be no prejudice when there appellant was not entitled to reply to an affidavit filed by the respondent – Allegations of bias – Where the appellant did not make any application for the primary judge’s disqualification – Assertions of errors of fact – Where even if the primary judge misconstrued the appellant’s evidence the error is inconsequential – Leave to appeal from Order 2 refused – Appeal from Orders 1 and 3 dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the additional material upon is voluminous – Where the abstention from use of material available at the time of the hearing before the primary judge is grounds to refuse its admission – Where a decision made by the primary judge not the subject of the appeal could not realistically bear upon the appeal – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.06, 5.07, 10.13
Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02
Crimes Act 1900 (NSW) s 338
Cases cited: CDJ v VAJ (1998) 197 CLR 172
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Newett & Newett (No.2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Wentworth v Rogers (No.5) (1986) 6 NSWLR 534
Number of paragraphs: 70 Date of hearing: 1 December 2022 Place: Heard in Sydney, delivered in Melbourne The Appellant: Litigant in person Solicitor for the Respondent: Worland Family Lawyers (Submitting Notice filed on 10 November 2022) Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors (Submitting Notice filed on 11 October 2022) ORDERS
NAA 187 of 2022
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Appellant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
9 December 2022
THE COURT ORDERS THAT:
1.Leave to appeal from Order 2 made on 2 August 2022 is refused.
2.The application to adduce further evidence in the appeal is dismissed.
3.The appeal from Orders 1 and 3 made on 2 August 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gambetto & Farrelli (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
The appellant and the respondent married in 2010, separated in 2016 and were divorced in 2017. They have one child together, who was born in 2013 and is now nine years of age.
Proceedings in respect of the child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) were commenced by the appellant in June 2021.
On 28 September 2021, the senior judicial registrar (“the registrar”) made interim parenting orders in respect of the child, essentially providing for him to live with the respondent and to spend time with the appellant under a graduating regime. It was apparently common ground the child had not spent any regular overnight time with the appellant before then.
In late December 2021, the appellant filed an application to vary the interim orders made in September 2021 by expanding the time the child spends with him. Then, in early February 2022, the appellant filed another application seeking to vary and supplement the existing interim orders in other ways. Both applications were dismissed by the registrar on 25 March 2022.
In April 2022, the appellant applied for two forms of relief: first, review of the registrar’s decision made on 25 March 2022, and secondly, leave to review the earlier decision made by the registrar on 28 September 2021 out of time.
The April 2022 application was heard by the primary judge in June 2022, but by which time the appellant sought different orders, as the primary judge acknowledged in the reasons for judgment (at [14] and [55]). By then, in essence, the appellant wanted orders to achieve two objectives: first, to vary the September 2021 orders by increasing the time the child spends with him; and secondly, to secure the Court’s permission, pursuant to s 338(1)(c) of the Crimes Act 1900 (NSW) (“the Crimes Act”), to prosecute the respondent and other persons for their alleged perjury and subornation of witnesses within the parenting proceedings conducted under Pt VII of the Act. The appellant withdrew his second application (at [16]), which was new and quite different, but persisted with the first, which was essentially unchanged.
The appellant’s applications were dismissed by orders made on 2 August 2022, from which orders the appellant now appeals.
For the reasons which follow, leave to appeal is refused in one respect and the part of the appeal which is brought as of right is dismissed.
Leave to appeal
The orders relevantly made by the primary judge are in these terms:
1.Save as provided by order made 3 June 2022, [the appellant’s] application filed 15 April 2022 for review of the orders made on 23 March 2022 be and is dismissed.
2.[The appellant’s] application filed 15 April 2022 for leave and/or extension of time to review the order of 28 September 2021 be and is dismissed.
3.[The appellant’s] application, attached by oral submission to his application for leave and/or extension of time to review the order of 28 September 2021, to set aside the orders of 28 September 2021 pursuant to rule 10.13(1)(b), be and is dismissed.
Leave is not required to appeal from Order 1, because it is an order made to dismiss the appellant’s application for interim parenting orders. The primary judge was reviewing, by hearing de novo, the decision made by the registrar on 25 March 2022 to dismiss the applications for parenting orders filed by the appellant in December 2021 and February 2022.
However, leave is required to appeal from Order 2 because it is merely a procedural order dismissing the appellant’s application for leave to review the interim orders made on 28 September 2021 out of time. An appeal from an interlocutory procedural order requires leave (s 28(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); reg 4.02(1)(a) Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth)). The question of leave will be considered in conjunction with the single ground which concerns Order 2.
Leave is not required to appeal from Order 3, as it is an interlocutory order made “in relation to a child welfare matter”. The appellant applied to set aside the interim parenting orders made in September 2021 by reason of the respondent’s alleged fraud, relying upon r 10.13(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The order dismissing that application was therefore related to a “child welfare matter”.
Application to adduce further evidence
The appellant wanted to include many more documents within the Appeal Book than the appeal registrar was willing to reasonably allow.
The appellant filed an Application in an Appeal on 2 November 2022 to review the procedural order made by the appeal registrar on 12 October 2022 about the restricted contents of the Appeal Book. On 3 November 2022, orders were made requiring the appeal registrar to compile a Contested Appeal Book containing the documents wanted by the appellant and adjourning his separate application to adduce those documents as further evidence in the appeal to be heard in conjunction with the substantive appeal.
The additional material upon which the appellant wishes to rely is voluminous, but may be categorised as follows:
(a)documents produced to the Court in answer to subpoenas issued in the proceedings below (items 12–20), all of which were apparently produced to the Court in advance of the hearing before the primary judge in June 2022, but none of which was tendered in evidence;
(b)a collection of Applications, Responses, an affidavit, Case Outline documents, and written submissions (items 3–11), all filed in the period between September 2021 and May 2022, but none of which was relied upon in the review hearing before the primary judge in June 2022; and
(c)transcript of a hearing conducted on 28 September 2022 by the primary judge, together with orders made and reasons for judgment published on that date by his Honour in relation to a costs dispute (items 1, 2 and 21), none of which have anything to do with the review hearing in June 2022 and the consequent orders made in August 2022.
In the affidavit filed in support of the application, the appellant deposed this in respect of the documents in the first two categories:
5.In my view the documents that were excluded by [the appeal registrar] contain important evidence of deceptive and fraudulent conduct by the respondent, which was subject of the hearing on 3 June 2022.
(Appellant’s affidavit filed 2 November 2022)
The appellant then deposed this in respect of the third category of documents:
7.Both documents provide an insight into the mind of the primary judge at the original hearing on 3 June 2022 and when making Orders on 2 August 2022 which are subject to this appeal. Both documents were refused for inclusion into the appeal book by [the appeal registrar] for reasons unexplained.
(Appellant’s affidavit filed 2 November 2022)
The allegedly “deceptive and fraudulent conduct” of the respondent has nothing at all to do with the question of whether the primary judge fell into appealable error by making the orders on 2 August 2022. The availability, but deliberate abstention from use, of the material within the first two categories in the hearing before the primary judge in June 2022 is good enough reason to refuse its admission as further evidence in the appeal, as the distinction between original and appellate jurisdiction should be preserved (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116] and [186.9]). To the extent that the primary judge can be understood to refuse the appellant’s application to rely upon more documents than the multiple affidavits identified in the reasons for judgment (at [11]), no error in that evidentiary ruling is demonstrated.
The decision made by the primary judge months afterwards in September 2022 and the manner in which that subsequent hearing was conducted could not realistically bear upon the questions of the primary judge’s bias and unfair conduct of the preceding hearing in June 2022, in which case the material in the third category should not be received either. In any event, the judgment of the primary judge delivered on 28 September 2022 is the subject of another appeal brought by the appellant (NAA 237/2022), which is yet to be listed for hearing.
The application to adduce further evidence in the appeal is dismissed.
The appeal
The Notice of Appeal comprises six grounds of appeal, but only three grounds were addressed in the appellant’s Summary of Argument and, regrettably, despite being numbered 1–3, they did not correlate with the first three grounds in the Notice of Appeal. Given the state of confusion about what grounds were eventually pressed, it is safest to address them all.
Two of the six grounds attack the fairness of the hearing conducted before the primary judge (Grounds 1 and 6) and must be considered first (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Ground 6
This ground asserts the appellant was denied procedural fairness by the primary judge allowing the respondent to rely upon an affidavit, when he was not given any time to reply to it.
The particular affidavit filed by the respondent which irks the appellant was not identified, but may be presumed to be the affidavit she filed on 2 June 2022 – the day before the hearing. The affidavit was certainly filed late (r 5.07 of the Rules), but the appellant was not prejudiced by the deprivation of any chance to reply because the Rules did not permit it (r 5.06(1)). At first instance, the appellant was the applicant. He was indulged by being permitted to rely upon four affidavits, with the respondent allowed two.
When the hearing commenced at 11.14 am, the primary judge began by identifying the material upon which the parties relied. Thereafter, the primary judge left the bench to read the material. Upon resumption of the hearing at 2.34 pm, the appellant made this enquiry of the primary judge:
[THE APPELLANT]: Your Honour, may I have a procedural question before we continue?
HIS HONOUR: Yes, certainly.
[THE APPELLANT]: So, I just went through the respondent’s latest affidavit and I am concerned that – well, in my view, most of it is – on my account, most of it is false. So, my procedural question is, what is the procedure, apart from putting, you know, extra amount of affidavits with extra evidence showing that the statements are false, how do we deal with that in court, because I don’t think we will have enough time during the trial to go through every statement?
(Transcript 3 June 2022, p.20 lines 18–28)
His Honour answered, in part:
HIS HONOUR: The way those factual disputes are dealt with is that I have to avoid making a finding one way or the other, but that – unless I’m pressed to or forced to by the circumstances of the case – and even then it’s a finding with great circumspection and usually related to risk issues.
…
HIS HONOUR: So, in terms of the factual allegations that both you make against [the respondent] and that she makes against you, particularly in the past, the law is that unless compelled by some urgent circumstance, I shouldn’t be making a finding and that I should chart the course of the child’s life, or the judge should chart the course of the child’s life just for the time being until we can get to a final hearing to deal with all of the matters. Now, I should also take this opportunity of saying to you, [to the appellant], that now that I’ve read the material better and have the submissions of the ICL, the disputes that I’m required to deal with as a matter of law today are narrower than what first appeared to me. I don’t have to determine what happened in Perth, who was controlling who. In fact, the law says I’m not to because your point is valid, I can’t get a hold of that good enough to fairly make a finding one way or the other, and that’s assuming that it can be made on the final hearing.
(Transcript 3 June 2022, p.20 lines 34–37; p.21 lines 15–28)
Having heard that explanation, the appellant took the issue no further. He was instead content to proceed as the primary judge suggested by hearing the Independent Children’s Lawyer’s (“the ICL”) submissions first, even though he was the applicant. There was no denial of procedural fairness.
Ground 1
This ground alleges an apprehension of bias arose from two sources: first, the manner in which the primary judge conducted the hearing; and secondly, the content of the reasons for judgment.
The appellant’s Summary of Argument articulates numerous complaints.
The first, in summary, is that the respondent’s lawyers referred to him disrespectfully and evinced an attitude of superior arrogance. That is not apparent from any fair reading of the transcript but, regardless, it is not a complaint about the conduct of the primary judge and so cannot give rise to any apprehension of judicial bias.
The second is that the primary judge “would not accept submissions from the appellant”. The transcript reveals the primary judge treated the appellant with commendable courtesy. That the appellant’s submissions did not ultimately find favour with the primary judge does not give rise to an apprehension of bias. The decision to accept or reject the parties’ submissions, either in whole or in part, is an inherent part of the proper discharge of the judicial function to decide and explain the determination of incompatible applications (Newett & Newett (No.2) (2021) FLC 94-051 at [54]–[80]).
The third is that the primary judge accepted the respondent’s submissions, which complaint is the obverse of the second complaint.
The fourth is that the primary judge “dismissed the appellant’s knowledge of the law”, which is another iteration of the appellant’s second and third complaints, since the appellant’s submissions concerning legal principles were bound to be either accepted or rejected. Although the appellant may have “inferred that the primary judge exercised bias against [him]” by reason of the rejection of his submissions, no such implication is objectively available in accordance with the legal principles governing disqualification for judicial bias – either actual or apprehended – on account of judicial conduct.
Any complaint the appellant may have about the primary judge’s conduct at the hearing must surely fail as it was waived (Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360). The appellant did not make any application for the primary judge’s disqualification, even though he had the benefit of advice from his “McKenzie friend”, who is a former barrister claiming 45 years of experience.
Finally, the appellant makes two more complaints of bias which arise from the reasons for judgment subsequently published. The first concerns his belief that the primary judge formed an opinion that he was “bluffing” in bringing the application for relief in relation to s 338(1)(c) of the Crimes Act but, since he voluntarily withdrew that application, his personal belief about what the primary judge might have thought about the application is irrelevant. His second complaint is that the primary judge dismissed the submissions he made about the registrar’s incompetence, but that too was misconceived because, as the primary judge pointed out both during the hearing and in the reasons for judgment, his Honour conducted a hearing de novo and any submissions about the registrar’s misconduct or errors were immaterial when the underlying applications were determined afresh.
Ground 2
This ground concerns Order 1, dismissing the appellant’s application to review the orders made in March 2022.
The ground is pleaded as follows:
2.In disallowing hearing de novo, the judge failed to properly consider some or all of the evidence relating to the change of circumstances instigated by the respondent and relating to the apprehension bias evidence.
As can be seen, the ground is premised upon the assertion that the primary judge “disallow[ed] [a] hearing de novo”. The premise is demonstrably false and so the ground must fail.
The application filed by the appellant in April 2022 to review the orders made by the registrar in March 2022 necessarily entailed the de novo hearing of the appellant’s two applications filed in December 2021 and February 2022, which were dismissed by the registrar’s orders. The primary judge knew it, as his Honour emphasised the point several times over, both during the hearing and in the reasons for judgment (at [20], [21], [41], [89] and [92]).
The reasons given by the primary judge for dismissal of the April 2022 review application thoroughly canvassed the appellant’s evidence and submissions (at [88]–[104]) and resulted in this conclusion:
105.Taking account of the December 2021 affidavit, the February 2022 and the June 2022 affidavit, the outline of case and [the appellant’s] oral submissions to me, I conclude that [the appellant] has not demonstrated a change of circumstances sufficient to warrant re-litigation of the child’s interim living arrangements in accordance with the rule in [Rice and Asplund (1979) FLC 90-725].
The change in circumstances, which the appellant alleged justified the variation of the interim orders made in September 2021, was not made out to the primary judge’s satisfaction.
The appellant did not deign to identify in the appeal the particular evidence supposedly proving such changed circumstances which the primary judge allegedly “failed to properly consider”.
As it was, the appellant lost his way when prosecuting the April 2022 review application, as he instead diverted his attention to the ancillary oral application he made to set aside the September 2021 orders for fraud, which application was dismissed by Order 3 and is the subject of Ground 4. The primary judge said this in the reasons for judgment:
94.In his oral submissions [the appellant] did not press what could be new facts and circumstances sufficient to warrant revisiting the September orders. He concentrated on the rule 10.13(1)(b) application in his oral submissions. However, he did not withdraw his review application and he continued to complain about the ICL, hence I will treat his review application as very much alive.
It follows that this ground has no merit and should be dismissed.
Ground 3
This ground concerns Order 2, dismissing the appellant’s application for leave to review the September 2021 orders out of time.
As already mentioned, leave is required to appeal from Order 2. The grant or denial of leave to appeal is influenced by whether or not the appellant can demonstrate that the order was wrongly made, which is to say nothing of the attendant requirement to show substantial injustice would result if leave were refused (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).
This proposed ground asserts the primary judge fell into discretionary error when dismissing his application for leave to bring a review application out of time by failing to properly consider the evidence of the registrar’s apprehended bias and procedural unfairness when making the September 2021 orders. The ground is without merit for two reasons, both of which are unrelated to the manner in which the appellant asserts dissatisfaction with the manner in which the primary judge determined the leave application.
First, the appellant withdrew the application at the hearing. The primary judge said this in the reasons for judgment:
69.[The appellant’s] application filed on 15 April 2021 sought “leave to apply for review of Orders made on 28 September 2021 (by the SJR).” [The appellant] did not press this issue in the hearing on 3 June 2022 and he made it clear that the review of the September Orders was based on rule 10.13(1)(b). However, lest it be that [the appellant], a litigant in person, did mean to press this application of rule 14.07 and was seeking to extend the time for review, I will now deal with that application. In this application I am guided by the long established but recently recited principles referred to in [Whitmore & Whitmore [2022] FedCFamC1A 75], cited above.
It was not contended in the appeal that the primary judge was mistaken about the withdrawal of the application. As it was withdrawn, it cannot be revived for the appeal.
Secondly, the application made, many months out of time, for leave to review the September 2021 orders via the April 2022 application was pointless. The separate review of the September 2021 orders was unnecessary because the appellant’s unconditional entitlement to review the orders subsequently made in March 2022 enabled him to prosecute his underlying applications filed in December 2021 and February 2022, both of which sought to vary the September 2021 orders. If his review of the March 2022 orders failed (as it did), so must any review of the September 2021 orders have failed.
In any event, the primary judge noted the application to extend time to review the September 2021 orders was about six months late (at [22], [70] and [84(a)]). The appellant explained his delay on the basis that he was unaware of his right to review the September 2021 orders at the time (at [71]), but the primary judge observed how the appellant’s challenge of those orders by other means up to and including the hearing in March 2022 was a factor which counted against an exercise of discretion in his favour by extending time (at [71], [84(b)] and [85]).
The gist of the complaint in this ground is that the primary judge did not take account of the registrar’s misconduct when making the September 2021 orders but, as the primary judge pointed out (at [41]), it was unnecessary for his Honour to be convinced of any error or misconduct by the registrar in a de novo review hearing. In deciding whether or not to extend time for the appellant to bring the review application in respect of the September 2021 orders, his Honour only essentially needed to consider the ostensible merit of the proposed review application, the extent of the delay in bringing it, the adequacy of any explanation for such delay, and any prejudice which might flow to the respondent if time was extended (Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer and Anor (1998) 195 CLR 516). The primary judge considered each of those material considerations.
There is no reason to doubt the correctness of Order 2 and, in any event, the appellant would suffer no injustice by the refusal to now grant leave to appeal from Order 2 on account of the substantive review conducted by the primary judge in respect of the March 2022 orders. Leave to prosecute this ground in the appeal should be refused.
Ground 4
This ground concerns Order 3, dismissing the appellant’s oral application to set aside the September 2021 orders under r 10.13(1)(b) of the Rules, which orders he contended were induced by the respondent’s fraudulent evidence.
This ground was particularised in the Notice of Appeal to be a complaint about the primary judge’s failure to take relevant evidence into account in this way:
4. [The primary judge] failed to properly consider the following evidence:
a)Withholding of Police and DCSJ reports from the appellant by [the registrar] on 28 September 2021 and reliance by [the registrar] on those reports in making the orders without providing the appellant a right of response.
b)Evidence that the appellant was not able to access the contents of the Police of DCSJ reports until May 2022 (7 months later).
d)Evidence from the appellant for the hearing on 3 June 2022 that police reports were malicious and that the appellant exercised his legal rights during the events descibed [sic] in the police reports.
e)Evidence that the respondent deceived [the registrar] by appearing as a genuine agreeable victim of domestic violence when in fact the respondent was a disagreeable perpetrator of emotional abuse.
i)all respondent's allegations were unproven or disproven at the time of the hearing on 3 June.
ii)material returned through subpoenas directly contradicted the account of the respondent.
iii)respondent continious [sic] refusal to make disclosures and obstruction of third party disclosures for 8 months.
iv)respondent's refusal to consent to her own draft orders between 28 September 2021 and 3 June 2022.
v)respondent's amended response just prior to the hearing seeking full control over the appellant and the child's relationship with the appellant.
f)[The registrar] making orders of fixed time being less than what was asked for by either respondent or the appellant.
g)[The registrar] by her orders effectively providing a tool of abuse and a mechanism for control of the appellant, which the respondent used to reduce an already reduced time the child spent with the appellant [the appellant].
h)Respondent making contradictory statements in all her filings, including on 27-28 September 2021 that the respondent wanted to reduce the number of changeovers and at the same time asked for an order of 14 changeovers over 14 days.
Similar, but not identical, submissions featured in the appellant’s Summary of Argument.
Rule 10.13(1)(b) of the Rules provides as follows:
Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
…
(b) it was obtained by fraud; or
In considering the application, the primary judge acted on the appellant’s contention that the respondent intentionally misled the registrar about the amount of time the child had been spending with him before the orders were made in September 2021 (at [42] and [47]), reviewed the evidence on that issue (at [56]–[66]), but did not find the respondent’s alleged fraud proven to the civil standard of proof (at [67]–[68]). Hence the dismissal of his application.
His Honour did not seemingly consider the appellant’s separate contention that the respondent’s fraud included giving false evidence about his commission of family violence, which submission was contained within the appellant’s Case Outline referred to by his Honour (at [29] and [47]). But the omission is immaterial. The respondent’s alleged fraud could not be proven simply by the appellant asserting the evidence she adduced during the hearing before the registrar was false, even if that be his genuine belief.
In the reasons for judgment, the primary judge cited Wentworth v Rogers (No.5) (1986) 6 NSWLR 534 (at 538 and 539) as authority for this proposition:
… [T]he burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.
…
Secondly, it must be shown, by the party asserting that a judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment… This rule has an ancient lineage… It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. If they have evidence of fraud which may taint a judgment of the courts, they should not collude in such a consequence by refraining from raising their objection at the trial, thereby keeping the complaint in reserve. It is their responsibility to ensure that the taint of fraud is avoided and the integrity of the court's process preserved.
(Emphasis added by primary judge, citations omitted)
Neither the appellant’s submission to the primary judge nor his submissions of error in the appeal could survive application of such authoritative principles. His case before the primary judge was the judgment, as reflected within the orders made in September 2021, was founded on the respondent’s perjury. Her alleged perjury was deposing evidence contrary to his.
Ground 5
This ground asserts the primary judge made errors of fact, but only two errors were particularised.
First, it is said the primary judge found the appellant moved to Sydney in 2020 rather than in 2019. As part of the explanatory “background”, the primary judge recited how the appellant moved from Perth back to Sydney in 2020 (at [7]), which appears to be an adoption of the appellant’s own evidence to this effect:
37.As a result, I was forced to travel Sydney and Perth on a weekly / fortnightly basis between [...] 2018 and [...] 2020, trying to balance my work commitments and relationship in Perth and my son in Sydney.
(Affidavit of the appellant, filed 22 September 2021)
Even if the primary judge misconstrued the appellant’s evidence, whether he returned to live in Sydney in 2019 or 2020 was entirely immaterial to the orders which are the subject of the appeal and so the error is inconsequential (De Winter and De Winter (1979) FLC 90-605).
Secondly, it is said the primary judge found that the time spent by the child with the appellant was not reduced by the orders made on 28 September 2021, which orders provided for the child to spend time with the appellant each Thursday and each alternate weekend.
In an affidavit filed in advance of those orders, the respondent alleged the appellant’s role in the child’s life was “fairly limited” and the child had only stayed overnight with him once. Similarly, the appellant deposed that after separation in January 2015 the respondent “limited [his] access” to the child and would not allow their unsupervised interaction, though they saw one another on “almost [a] daily basis” for short periods. The respondent and child moved to Sydney in April 2018 and so the appellant maintained contact with the child by travelling from Perth to Sydney “on a regular basis” until he moved to Sydney himself. Even then he acknowledged overnight visits were “banned”. There is obviously some conflict in the parties’ evidence, but it could hardly be said the September 2021 wrought a qualitative reduction in the level of interaction between the child and the appellant.
The appellant did not identify where precisely in the reasons the primary judge found the September 2021 orders did not reduce the child’s time with him, but even if it is assumed such a finding was made, the complaint should be rejected for immateriality. The primary judge certainly made no mistake about how much time the September 2021 orders dictated the child must spend with the appellant when conducting the review of the March 2022 orders.
Disposition
Leave to appeal from Order 2 is refused.
The appeal from Orders 1 and 3 is dismissed.
The respondent and the ICL both filed Submitting Notices so no question of costs arises.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 9 December 2022
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