George & George
[2024] FedCFamC1A 15
•22 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
George & George [2024] FedCFamC1A 15
Appeal from: George & George [2023] FedCFamC1F 718 Appeal number: NAA 282 of 2023 File number: BRC 4444 of 2020 Judgment of: ALDRIDGE, HARPER & BRASCH JJ Date of judgment: 22 February 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders changing the children’s residence from the father to the mother with a six month moratorium on time with the father followed by 12 months of supervised time – Allegations of apprehended bias – Allegations of denial of procedural fairness – Adequacy of reasons – Whether the primary judge failed to give sufficient weight or consideration to evidence – No error established – Appeal dismissed – Father ordered to pay costs of the mother and the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, s 60CC Cases cited: Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Crabman v Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hamish & MacPherson [2023] FedCFamC1A 74
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Langley & Tarelli (No 5) [2023] FedCFamC1A 208
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Pandya & Pandya [2023] FedCFamC1A 85
Pascoe & Larsen (No 4) [2023] FedCFamC1A 127
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; [2023] HCA 15
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Saltern & Mink [2020] FamCAFC 320
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Wynn & Danilov [2023] FedCFamC1A 149
Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 66 Date of hearing: 29 January 2024 Place: Heard in Brisbane, delivered in Sydney Counsel for the Appellant: Mr Hartwell Solicitor for the Appellant: Fixed Cost Family Law Counsel for the Respondent: Mr Trout Solicitor for the Respondent: Browns Lawyers Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NAA 282 of 2023
BRC 4444 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GEORGE
Appellant
AND: MS GEORGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, HARPER & BRASCH JJ
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Appeal NAA 282 of 2023 is dismissed.
2.Within 28 days the appellant father (“the father”) is to pay the respondent mother’s costs of the appeal fixed in the amount of $27,500.
3.Within 28 days the father is to pay the costs of the Independent Children’s Lawyer of the appeal fixed in the amount of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARPER & BRASCH JJ:
INTRODUCTION
This is an appeal from final parenting orders made ex tempore on 11 August 2023. The appeal is brought by the appellant father (“the father”). It is opposed by the respondent mother (“the mother”) and the Independent Children’s Lawyer (“the ICL”).
There are two children the subject of the appeal, X, aged 11 years, and Y, aged eight years (collectively “the children”). Prior to the final orders the children resided solely with the father and had spent no time nor had any communication with the mother since 1 July 2021.
In summary, the final orders provided that the children undergo a change of residence from the father to the mother and that there be a six month moratorium on the father’s time followed by 12 months of supervised time each Saturday for up to two hours. The orders then provided for unsupervised time each Saturday between 9.00 am and 5.00 pm for a period of three months and thereafter from after school on Friday until before school on Monday each alternate weekend. It is these orders which the father challenges on appeal.
BRIEF BACKGROUND
Prior to the commencement of the parties’ relationship the father was involved in a serious accident in 2007 which left him dependent on a mobility aid.
The parties commenced living together in or around April 2009 and were married in 2011. They separated on a final basis on 1 March 2020. Very shortly after their separation the father commenced a relationship with Ms T. Ms T and her two children, currently aged 10 and six years, moved into a house owned by the father’s brother with the father in April 2020.
From 1 March 2020 until 1 July 2021 the children lived in an equal time arrangement, alternating between each parent’s care every three or four nights.
The mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) on 22 April 2020 seeking parenting and property orders. The mother joined seven other parties to the property proceedings, being members of the paternal family and entities owned by the paternal family. The property proceedings remain on foot.
The proceedings were transferred to the Family Court of Australia (as it then was) on 11 June 2020 due, in part, to the number of parties involved in the property proceedings.
The father collected the children in accordance with the existing parenting arrangements on 1 July 2021, then informed the mother by way of text message on 4 July 2021 that he would not be returning the children to her care due to concerns about their safety and wellbeing. Until the final orders were made the children had no contact with the mother after this date.
The final hearing took place over seven days between 3 August 2023 and 11 August 2023. Counsel appeared on behalf of the father on 3, 4, 7 and the morning of 8 August 2023 and the father represented himself, after withdrawing his instructions, for the remainder of 8 August 2023 and the remaining three days of hearing.
On 10 August 2023, following the close of evidence and the final submissions of the ICL the primary judge indicated his intention to deliver his judgment ex tempore the following day, 11 August 2023. At this stage neither the mother nor the father had made their closing submissions. The ICL requested that the Court make an order for the children to be brought to the Court building on the following day pending the decision of the Court. Counsel for the mother then made closing submissions and the father elected to make his submissions on 11 August 2023. The primary judge made orders, as requested by the ICL, that the father bring the children to the Court precinct the following morning pending delivery of judgment.
The father concluded his submissions the morning of 11 August 2023 and following a short adjournment his Honour delivered his ex tempore reasons, pronouncing the final orders and changing the residence of the children.
The father brought the children to the Court precinct on 11 August 2023 and they transitioned to the mother’s care on that day.
THE APPEAL
The orders the subject of the following grounds of appeal arose from a discretionary judgment. Accordingly, the father must point to the type of error long recognised in House v The King (1936) 55 CLR 499 at 504–505:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred …
The father bears the onus of not only demonstrating error, but that a different result might have flowed had the error not occurred (Allesch v Maunz (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320).
Grounds 1 and 2 raise arguments of apprehended bias and procedural fairness. It is an accepted position that challenges to a judgment based on bias or other procedural fairness issues should be dealt with prior to other grounds as they are matters that go to the validity of the trial (see Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10], applying Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 (“Concrete Pty Ltd”); Hedlund & Hedlund (2021) FLC 94-065 (“Hedlund”)). If a ground of bias or other procedural fairness issue is made out on appeal the remedy would be a retrial (Concrete Pty Ltd at [117]; Crabman v Crabman (No 2) (2020) 61 Fam LR 191 at [16]; Wynn & Danilov [2023] FedCFamC1A 149 at [33] (“Wynn & Danilov”)).
Ground 1: Apprehended Bias
Ground 1 of the appeal alleges that:
That the learned trial judge failed to afford the [father] procedural fairness in that a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial and unprejudiced mind to the resolution of the question the judge was required to decide (apprehended bias) as demonstrated by his order made on 10 August 2023 that the children the subject of the proceedings be brought to Level 3 of the court at 11:30am the following day pending a determination by the court as to the residence of the children …
Apprehended bias requires consideration of “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” (Johnson v Johnson (2000) 201 CLR 488 at [11]) (“Johnson”). In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] (“Ebner”), the High Court explained:
8.The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. … Only then can the reasonableness of the asserted apprehension of bias be assessed.
More recently in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65 Kiefel CJ and Gageler J reiterated that the standard of a “fair-minded lay observer” is taken to be:
47. Being “fair-minded”, the observer “is neither complacent nor unduly sensitive or suspicious” [Johnson at [53]]. Yet the observer is cognisant of “human frailty” [Ebner at [8]] and is all too aware of the reality that the judge is human …
48. Being “lay”, the observer “is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge” [Charisteas v Charisteas (2021) 273 CLR 289 at [12], quoting Johnson at [13]]. Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard “the irrelevant, the immaterial and the prejudicial” [CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [28]; GetSwift Ltd v Webb (2021) 283 FCR 328 at [35]] ...
(Footnotes inserted)
It is well settled that when a party is in a position to object but takes no steps to do so, that party cannot be heard to complain that the judge was biased (Vakauta v Kelly (1989) 167 CLR 568 at 587). As pointed out earlier, on 10 August 2023, the primary judge indicated an intention to deliver ex tempore reasons the following day when the children were required to be brought to the Court precinct and the father was going to make his submissions. Although the father was self-represented at that date, it was open to him to raise any apprehension of bias with the primary judge before the delivery of judgment and during his submissions. He did not do so. Although this would be sufficient to dispose of Ground 1, we do not rest our decision on this basis alone. We will address the other arguments of the father raised under this ground.
The father argued that because the primary judge made an order on 10 August 2023, before the father had made his submissions, for the children to attend the Court on 11 August 2023, a reasonable fair minded observer would apprehend that the primary judge had made up his mind to move the children to the mother’s care and was not open to persuasion. The father submitted that the order for the children to attend Court was “unusual” where the father had not yet made final submissions.
However, the father did not explain why the order was unusual, other than the fact it was made before his submissions. Indeed, as the ICL submitted, the order made by the primary judge was not unusual where a change of residence is possible for children (ICL’s Summary of Argument filed 17 January 2024, paragraph 11). The idea of such an order had already been raised during the proceedings, while the father was represented. Ms Z, on whom the parents had been attending for family therapy, was called as a witness by the ICL. During her cross-examination on 4 August 2023 she agreed it would be appropriate for the ICL and even the Family Report writer Mr S (“the Family Report writer”) to explain the orders of the Court to the children (Transcript 4 August 2023, p.97 lines 15–21).
Counsel for the father accepted during oral submissions that the mind of the hypothetical reasonable lay observer could apprehend at least three reasons for the primary judge’s order, none of which suggested he would not bring an impartial and unprejudiced mind to the resolution of the parenting dispute before him. First, the presence of the children at Court on 11 August 2023 was a proposal made by the ICL, having earlier put it to Ms Z. Secondly, the primary judge, having heard the evidence and submissions from the mother and the ICL, may quite properly have formed a provisional view, causing him to entertain the possibility that the children should move to the care of the mother, subject to hearing from the father. Their presence at Court would assist in such a transition, if ultimately the primary judge was persuaded to turn the possibility into a certainty in his final orders. Thirdly, the presence of the children at Court would allow the ICL to explain the ultimate orders to the children, in the presence of the Family Report writer which would be helpful to the children, whatever orders were made.
We find no merit in Ground 1.
Ground 2: Procedural fairness
Ground 2 is expressed in the following terms:
That the learned trial judge failed to afford the [father] procedural fairness in that the learned trial Judge failed to afford the [father] a fair trial (‘hearing rule’) by not recalling [the Family Report writer] after the close of the [father’s] case and/or by failing to advise the [father] of the right to request that be done.
In determining this ground, it is necessary to record that on 4 August 2023 in relation to the Family Report writer’s evidence, the primary judge made clear that “if anyone then wanted to apply to have [the Family Report writer] recalled after the rest of the other evidence, that’s fine too. All right? ... So no one would be disadvantaged” (Transcript 4 August 2023, p.100 lines 24–29). The primary judge reminded the parties of this dispensation on the morning of 7 August 2023 stating that “[a]s I said the other day, if anyone wants to recall [the Family Report writer] after the end of the other evidence, then they will be at liberty to do so” (Transcript 7 August 2023, p.103 lines 9–10). On both occasions the father was represented by counsel and must be taken to have heard these remarks of the primary judge. Moreover, on 9 August 2023, the Family Report writer was actually recalled to be questioned on the differing proposals of the parties as they then stood. The primary judge explained to the father, who was by then self-represented, that his questions should be confined to the three proposals, to which the father said “[y]es, your Honour” (Transcript 9 August 2023, p.295 lines 1–7). So the parties were told twice by the primary judge that they could recall the Family Report writer, and he was in fact recalled once.
These exchanges took place prior to the father’s other family members, whom he called as witnesses, giving evidence. The father developed his argument about denial of procedural fairness by contending that the strong views held by the father and the wider paternal family against the mother should have been put to the Family Report writer as they were relevant to the duration of supervised time between the father and the children. As noted already, the primary judge ordered no contact between the father and the children for six months, followed by 12 months of supervised time. There was no dispute that the primary judge considered the question of supervision and its duration at some length in the judgment (at [53]–[57]). He specifically referred to the paternal family’s attacks on the mother intensifying during the course of the trial and after the Family Report writer had given evidence.
In oral submissions counsel for the father, as we understood the argument, contended that the primary judge was under an obligation either to recall the Family Report writer himself or to remind the father that he could do so, and that his failure to do either denied the father procedural fairness. He claimed in oral submissions that the father was denied the opportunity to put to the Family Report writer the views of his wider paternal family about the mother, as they had been disclosed in the cross-examination of those witnesses.
The father relied upon the well-known guidelines set out in Re F: Litigants in Person Guidelines (2001) FLC 93-072 (“Re F”) as follows:
253.Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
…
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
Recently, in Wynn & Danilov at [37]–[38] the Full Court said:
37.The father in his submissions to the primary judge and before this Court made consistent reference to the fact he was self-represented, apparently on the one hand to emphasise that he stood at some disadvantage and on the other to claim the Court laboured under an obligation to give him direction about what to do. In Gallo v Dawson (1990) 93 ALR 479 at 481, McHugh J characterised self-representation as “a misfortune, not a privilege”. This Court’s responsibility to an unrepresented litigant is well known. It is bound to provide some advice and assistance, but a judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation ([Re F at [221]–[224]]; Platcher & Joseph [2004] FCAFC 68 at [104]–[105]; Yein & Zihao (2019) FLC 93-889 at [10]). In Harris & Hadfield [2014] FamCAFC 41 at [67], referring to Re F, the Full Court confirmed that “a trial judge’s responsibilities to a self-represented litigant in the conduct of a trial do not exist in a vacuum. The responsibility to a self-represented litigant must be balanced with other competing interests, such as the case management requirements”.
38.Otherwise self-represented litigants have a responsibility to familiarise themselves with the Rules, the applicable legislation and any relevant Practice Directions, and then to present their evidence and submissions in the same way as represented litigants. It was apparent from the tenor of his arguments that the father held a perception of bias which stemmed in part from a belief that he was entitled to some special treatment because he was self-represented. The Court is not obliged to compensate for a self-represented litigant’s perception of disadvantage. The obligation is to address any actual disadvantage to achieve a “level playing field” between unrepresented and represented litigants (Re F at [215]).
In Pascoe & Larsen (No 4) [2023] FedCFamC1A 127 at [29], Aldridge J, sitting as the Full Court, pointed out:
29. The guidelines are not inflexible rules of conduct to be rigidly applied in all cases. Rather, their aim is to provide assistance to judges and litigants to afford procedural fairness so as to ensure a fair trial. It is only when a failure to apply the guidelines leads to a procedural unfairness and an unfair trial, that an injustice would arise that requires appellate intervention ([Re F] at [230]; Forster & Forster [2016] FamCAFC 143 at [181]–[182]).
We are not persuaded the primary judge was under any obligation to recall the Family Report writer himself or, after 9 August 2023, remind the father that he had leave to do so. While it may be accepted that the primary judge had a range of powers under Div 12A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) which could be exercised on the Court’s own initiative, and could include requiring the recall of an expert witness, there is no principle to which we were referred which imposed an obligation to do so.
Beyond this, the father must be taken to be aware that, if he wished, at any time before the end of the trial, he could seek the recall of the Family Report writer. He did not do so. As pointed out, the primary judge was required to maintain a position of neutrality, and afford procedural fairness to all parties. This included avoiding the perception that he was advising the father about how to present his case and deal with evidence.
A breach of the rules of procedural fairness must be material before it invites appellate intervention. A breach is only material if it operates to deny a party an opportunity to give evidence or make arguments and thereby to deprive that party of the possibility of a different and more favourable outcome (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [2]).
In his Amended Summary of Argument filed 12 January 2024, the father claimed:
27.3… the learned trial judge, having formed a view as to the ‘strong’ and ‘intense’ views of the [father] (and his family) based largely on the evidence given on 10 August 2023, did not then put this to the [father] so that he might address this issue, possibly with a view to these matters being put to [the Family Report writer].
However, in oral submissions counsel for the father conceded that the views of the paternal family were likely to support longer not shorter supervision. It is therefore impossible to see how the suggested denial of procedural fairness was material.
Ground 2 fails.
Ground 3: Mother’s Parenting Capacity/ Risk in the Mother’s Care
Ground 3 states:
The learned trial Judge erred in failing to consider the Mother’s parenting capacity as required by s60CC(3)(f) and/or the learned trial judge failed to give any or any sufficient weight to evidence which went to the attitudes of the Mother (and her family) towards the Father. Consequently, the learned trial Judge erred in finding that the children were not at risk in the Mother’s care [Judgment, [33] & [35]] and not at risk from the maternal grandfather [Judgment, [43] & [44]] and erred in finding that the Mother had the capacity to provide for the emotional and physical needs of the children [33]. Alternatively, the finding was plainly or manifestly wrong.
(As per the original)
This ground raises a failure to consider or give weight or adequate weight to evidence, leading to an erroneous factual finding.
Section 60CC of the Act provides that, in determining the best interests of a child, the Court “must” consider the primary and additional considerations set forth in subsections (2) and (3).
In Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [43] the High Court made clear the term “consider” “imports an obligation to give proper, genuine and realistic consideration” when used in s 60CC of the Act. However, appellate intervention is only justified if a failure to consider rises to the level of a failure to take mandatory or relevant considerations into account (Bugmy v The Queen (2013) 249 CLR 571 at [53] (per Gageler J as he then was) (“Bugmy”)). Grounds of appeal criticising the primary judgment as to proper consideration, or indeed weight, are only a valid justification for appellate intervention if the result achieved is unreasonable or plainly unjust (Hedlund at [37]).
Weight challenges on appeal face considerable hurdles. Failure to give adequate weight to relevant considerations must amount to “a failure to exercise the discretion actually entrusted to the court” before appellate intervention is warranted (Lovell v Lovell (1950) 81 CLR 513 at 519). The weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong” (CDJ v VAJ (1998) 197 CLR 172 at [186]; Bugmy at [53]; Hedlund at [36]–[37]; Pandya & Pandya [2023] FedCFamC1A 85 at [48]; Hamish & MacPherson [2023] FedCFamC1A 74 at [27]–[29]).
In Gronow v Gronow (1979) 144 CLR 513, Stephen J opined, at 519–520:
… 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 …
A failure to mention a piece of evidence or submission in a judgment does not of itself demonstrate error. In Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Samuels JA said:
… It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty [to consider all of the evidence in the case] which rests upon him or her …
In Langley & Tarelli (No 5) [2023] FedCFamC1A 208 at [63]–[64] the Full Court said:
63.It is clear that consideration can be inferred from the transcript, the issues joined, the submissions of the parties and the judgment as a whole. The first question is therefore whether or not consideration took place, either as required by s 60CC, or the issues, evidence and submissions of the parties … The second question is whether any failure of consideration was an error which, if not made, may have led to a different result or did lead to a result that was unreasonable or plainly unjust.
64.We accept that the absence of reference to a matter in the reasons for judgment may support the inference it was not considered (Alexandria Landfill Pty Ltd v Transport for NSW [2020] NSWCA 165 at [7]). But … [a] judge’s reasons are not required to mention every fact or argument relied upon by an unsuccessful party (Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598 at [62]). A judge is required to determine only those facts which are necessary to decide the issues between the parties (Baghti & Baghti [2015] FamCAFC 71 at [63]).
The father in his Amended Summary of Argument contended that the primary judge gave no reasons for his findings regarding the mother’s parenting capacity. However, this argument cannot be sustained.
The Full Court has confirmed many times that reasons need only be adequate, and adequacy depends on the circumstances. Reasons will be inadequate if the appellate court is unable to ascertain those reasons for the decision and if justice is not seen to be done (Yarrow & Yarrow [2022] FedCFamC1A 135 at [17]). Reasons may, however, also be inadequate if they fail to refer to “cogent evidence that is relevant to an issue that is of significance in the proceedings” (Aitken & Aitken (2023) FLC 94-142 at [42]).
At [86] of the judgment, the primary judge said:
86.I have not specifically made mention of the evidence of all of the witnesses in this case and nor am I required to. The view that I have taken is that I have referred to those parts of the evidence and to those witnesses required for the determination of the significant issues before the Court.
This statement supports the inference that the primary judge considered all the evidence before him, but did not find it necessary to make mention of it all.
The primary judge exposed his reasoning about the capacity of the mother to facilitate a relationship between the father and the children as follows:
33.In terms of risk so far as the mother is concerned, the view that I have formed is that she has the capacity to parent these children and she has the willingness to facilitate a relationship between them and their father. The view that I have formed is that the mother has the capacity to deal with a very tricky situation, in the event the children move into her care. It will be difficult, make no doubt about it. The expert was clear. The mother is up to it. That is my assessment of the mother.
The primary judge continued at [34]–[35] with respect to risk in the mother’s care:
34.The mother was subjected to egregious attacks on her character during the course of this trial. She answered with good grace. She was asked about her sex life, her body, her use of the morning-after pill, whether she was a prostitute, whether she was an illicit drug taker. Subjected to egregious attacks in a situation where there is very little credible evidence to back any of it up, and this has to be kept in mind in the following context. These attacks were made by the father and his lawyers (on his instructions). In circumstances where, on the other hand, the father insists to this Court that he wants the children to have a relationship with their mother. The lack of insight is staggering.
35.Other issues of risk were raised – for completeness, I shall make specific findings. I find as a fact that the mother is not a person who uses illicit drugs. I find as a fact that the mother is not a person who misuses prescription medication. I find as a fact that the mother has not suffered from any untreated mental health illness. I find as a fact that the mother has not utilised smacking as a discipline technique to an inappropriate level. I find as a fact that the mother is not the sort of person who is completely emotionally detached from the children. I find as a fact she is not a person who is likely to cause them emotional harm.
In oral submissions counsel for the father, correctly, eschewed a submission that there was no evidence to support these conclusions of the primary judge. He also accepted that no cross-examination or submission had been directed to the willingness of the mother to facilitate the children’s relationship with the father, and his arguments on appeal were thus different to the case he put to the primary judge.
The father has not demonstrated that the primary judge failed to consider the mother’s parenting capacity as required by s 60CC(3)(f). In our view he clearly did.
The father is also bound by the way he conducted his case before the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68). The primary judge cannot be criticised for not considering an argument which was not put to him. The High Court has said an appellate court should take a benevolent approach to the reasons of the primary judge; and when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66 at [120]–[121]).
We also reject the contention that the primary judge failed to give, or gave inadequate, weight to evidence which might be thought to reflect adversely on the mother’s parenting capacity. As noted above at [50] and [51], the primary judge made a number of specific findings about the alleged risk factors involving the mother. The father argued the primary judge should have found the children were at risk in the mother’s care. He pointed to a number of pieces of evidence which he claimed supported this conclusion. But in light of the primary judge’s clear reasoning, none of them established a basis for appellate intervention because they failed to show the primary judge’s conclusions were unreasonable or plainly wrong. On the contrary, the matters canvassed at [33]–[35] of the judgment amply support the conclusions of the primary judge.
Ground 3 fails.
Ground 4: Risk in the Father’s Care/ Father’s Capacity
Ground 4 provides:
The learned trial Judge erred in finding that, whilst the children ‘lack for nothing’ in the care of the [father], the children were at risk in the care of the [father] (at [36]), and in making that finding the learned trial judge failed to have regard to or failed to give sufficient weight to relevant facts. Alternatively, the finding was plainly or manifestly wrong.
This ground again raises a failure to consider or give weight or adequate weight to evidence leading to a plainly wrong conclusion.
In support, the father argued that the primary judge erred in placing weight on the evidence of Ms BB who was a counsellor (at [23]). He argued that Ms BB’s evidence was diminished in weight because she had counselled the mother and therefore should have been viewed by the primary judge as partisan in favour of the mother. We reject this submission. The primary judge referred specifically to evidence of Ms BB at [24]–[31] of the judgment, being evidence of what Ms BB’s notes recorded X telling her in mid-2020, and then in mid-2021. The evidence was not adverse to the father’s case. In any event, Ms BB was cross-examined at some length by the father. It was never put to her that she was biased in favour of the mother, nor was there anything in the evidence recorded by the primary judge to suggest that she was. The primary judge found she was a credible witness. The father has not pointed to any error in the primary judge giving the evidence weight.
The father also argued that the primary judge failed to take account of the affidavit evidence of Ms KK, although this was clearly received into evidence. The evidence annexed a report dated 6 July 2021 which purported to be of an expert nature. Ms KK was not cross-examined. There is no mention of Ms KK’s evidence in the reasons of the primary judge, but as pointed out, at [86] of the judgment, the primary judge explained he had not made specific mention of every witness. The opinion of Ms KK is said to be based upon 15 sessions with X. According to the father her opinion supported the submission the children were estranged from the mother because of her own conduct as opposed to alienating conduct of the father.
However, the report of Ms KK was problematic on its face. It was addressed “To whom it may concern”, and there was no letter of instruction provided, although Ms KK states in her affidavit that she received instructions from the father on 25 June 2021. She records that X made statements which suggested some risk in the mother’s care. But X was also brought to her by the father, who had given the initial instructions. She then expressed the opinion that X was “at unacceptable risk of continued emotional and physical harm should he be required to continue the living arrangements with his mother” (Annexure “[MKK01]” of the affidavit of Ms KK filed 30 August 2021, p.6). On the face of the report, the only basis for this opinion could have been information from the father and statements from X. The deficiencies in the evidence are self-evident. It was open, as counsel for the father accepted in oral submissions, for the primary judge to give it no weight. There was no obligation to mention evidence which had no weight.
In his Amended Summary of Argument, the father also contended that the primary judge “failed to have regard to, or gave insufficient weight to, the evidence of Ms. [LL] … which supports a finding that the child, X, was scared of his mother because she might hit him” (filed 12 January 2024, paragraph 40.3(e)). Ms LL was one of the witnesses cross-examined briefly by the father on 10 August 2023. She was not a willing witness. She did not provide an affidavit but attended as a witness under subpoena issued by the ICL. Her evidence simply confirmed that on one occasion on 15 July 2021 another public servant, Ms MM, told her that X had told Ms MM he was afraid his mother might hit him (Transcript 10 August 2023, p.478 line 35 to p.479 line 3). Again this evidence has limited weight and marginal importance in the proceedings overall. By the time of the trial it was two years out of date. It was not consistent with the evidence of Ms BB, who spent extensive time with X. The primary judge observed that “[i]n mid-2021 [X’s] views of his mum were significantly better than they are now”, with reference to the evidence of Ms BB (at [66]). The father has not demonstrated the primary judge failed to give proper weight to the evidence of Ms LL.
Ground 4 fails.
CONCLUSION
For the foregoing reasons the appeal should be dismissed.
COSTS
The mother sought costs in the event the appeal failed. Her schedule of costs claimed $48,162.20 on a party/party basis or $61,017.97 on an indemnity basis. No submission was put justifying an award of costs on an indemnity basis. In our view, the claim for party/party costs includes items which should not be allowed. However, we are also satisfied there are circumstances justifying an award of costs, particularly the fact that the father has been wholly unsuccessful. In the exercise of discretion we will order the father to pay the mother’s costs fixed in the amount of $27,500.
The ICL claimed costs of $12,366.09. We consider it appropriate for the father to pay the ICL’s costs fixed in the amount of $10,000.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Brasch. Associate:
Dated: 22 February 2024
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