Gerard & Santino
[2024] FedCFamC1A 218
•21 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gerard & Santino [2024] FedCFamC1A 218
Appeal from: Gerard & Santino [2024] FedCFamC1F 386 Appeal number: NAA 166 of 2024 File number: MLC 53 of 2021 Judgment of: AUSTIN, CARTER, & CURRAN JJ Date of judgment: 21 November 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING & PROPERTY – INTERNATIONAL RELOCATION – Where the father appeals from final parenting orders permitting the mother to relocate with the parties child to the United Kingdom – Where the father asserts denial of procedural fairness – Where the father asserts discretionary error – Where the father asserts failure to give reasons – Application in an Appeal – Where the father seeks leave to adduce further evidence – Where none of the further evidence demonstrates error by the primary judge – Application dismissed – Appeal dismissed – No orders as to costs. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Cases cited: 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
Hedlund & Hedlund (2021) FLC 94–065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Mallory & Mallory [2020] FamCAFC 62
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs: 82 Date of hearing: 28 October 2024 Place: Heard in Melbourne, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Lander & Rogers ORDERS
NAA 166 of 2024
MLC 53 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GERARD
Appellant
AND: MS SANTINO
Respondent
ORDER MADE BY:
AUSTIN, CARTER & CURRAN JJ
DATE OF ORDER:
21 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 7 October 2024 is dismissed.
2.The Amended Notice of Appeal filed on 11 September 2024 is dismissed.
3.The applications for costs by the appellant and the respondent are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gerard & Santino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, CARTER AND CURRAN JJ:
The appellant father (“the father”) appeals from Orders 2, 3, 5–12 and 15 of final parenting and property orders made on 5 June 2024. Those final orders provide, inter alia, permission for the respondent mother (“the mother”) to relocate with the parties’ child to the United Kingdom, that the mother have sole parental responsibility and set out the child’s time with the father pending the relocation and subsequently upon relocation.
In relation to property, the primary judge ordered that the father pay the mother $36,000 within 60 days.
The father filed a Notice of Appeal on 3 July 2024. He filed an Amended Notice of Appeal on 11 September 2024, just one day out of time. Sensibly, counsel for the mother did not press any objection and leave was granted to the father to rely on his Amended Notice of Appeal.
In addition, the father filed an Application in an Appeal on 7 October 2024 in which he sought to adduce further evidence in the form of an affidavit affirmed by him filed on 7 October 2024 and an affidavit filed by his partner on 10 October 2024.
The mother sought the Application in an Appeal and the appeal be dismissed.
The father is a litigant in person. He has attention deficit hyperactivity disorder (‘ADHD’) and dyslexia. His grounds of appeal and oral and written submissions were difficult to follow at times – but we have done the best we can to understand and engage with his arguments. To assist him in the appeal, his partner remained seated with him at the bar table.
BACKGROUND
The father was born in Australia. He is 43 years old and works in the creative industries. In addition, he is an independent service provider.
The mother was born in the United Kingdom. She is 30 years old. She works as an artist and is the primary carer for the parties’ now five-year-old daughter.
The parties commenced their relationship in 2018 when the mother was in Australia on a working holiday. She obtained her permanent residency in 2021.
The parties physically separated in about mid-2020. The child has remained living with the mother since that time. Time with the father has increased since separation such that the child now spends time with the father each alternate weekend for two nights and one night in the alternate week. In addition, the orders made by the primary judge provide for the child to communicate regularly by electronic means with the father.
The proceedings commenced in early 2021 and were set down for final hearing in November 2022. They were then transferred to the Federal Circuit and Family Court of Australia (Division 1) in November 2022 and the final hearing set down to commence in November was vacated. The trial was listed for hearing before the primary judge to commence in June 2023, then adjourned to July 2023 and adjourned again to October 2023, at which time the hearing commenced.
Final orders were made on 5 June 2024.
APPLICATION IN AN APPEAL
By an Application in an Appeal filed on 7 October 2024, the father sought to adduce as further evidence in the appeal an affidavit filed by him on 7 October 2024 and an affidavit filed by his partner on 10 October 2024.
Pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this Court has a broad discretion to admit further evidence on appeal. The primary purpose of doing so is to assist in demonstrating error by the primary judge; (see CDJ v VAJ (1998) 197 CLR 172 (“CDJ”)). The discretion to admit further evidence must be exercised with much care in parenting cases; CDJ at [117].
The further evidence referred to in the father’s affidavit filed on 7 October 2024 sought to cover a variety of topics. However, none of the evidence sought to be adduced by the father was capable of demonstrating error by the primary judge, and the Application in an Appeal must be dismissed.
That the mother no longer wishes to relocate
First, the father asserted the mother no longer wished to relocate. That the mother may have decided not to relocate is not relevant to the determination of this appeal. It has no bearing on whether there has been an error by the primary judge, whose orders provide for the child’s time and communication with the father whilst the mother and child remain in Australia.
Assertions as to non–compliance and poor behaviour by the mother
The father’s assertion that the mother had not complied with the Court’s orders regarding facilitating communication between the father and child is not solved by an appeal from the orders. Such complaint is appropriately addressed by a contravention application in the original proceedings.
The father further asserted the mother sought to undermine the relationship between himself and the child. He sought to adduce text messages and evidence of incidents at changeover which he said supported this assertion. Complaints by the father as to the mother’s behaviour and the impact of it on the child’s relationship with him were well ventilated at trial. It is not a ‘post-trial development’ – but formed part of the evidence tendered at trial and considered by the primary judge.
Earlier filed affidavits
The father’s affidavit in support of his application listed a raft of affidavits filed both by him and by other witnesses on his behalf which he now seeks be admitted into evidence. Each proposed affidavit had been filed well before the final hearing. However, they were not relied upon – nor sought to be relied upon – at trial. There was no reference in the transcript to the father seeking to rely on any of these affidavits. He simply did not raise this issue with the primary judge.
Generally speaking, evidence available to be used at the hearing, but determined by the party to not be used in the proceedings at first instance should not readily be admitted into an appeal. Moreover, the father merely lists the affidavits he now wants to have admitted into evidence. He did not articulate how any of the proposed material demonstrated an error on behalf of the primary judge.
Non–disclosure
The father deposed that the mother had not disclosed bank accounts prior to trial and sought to issue subpoenas for the production of those statements. That was not necessary as the mother admitted she had failed to disclose two bank accounts in her name, the balances of which totalled less than $4,000 at the time of trial. Those accounts should have been disclosed prior to the hearing before the primary judge. Such evidence could only relate to the aspect of the appeal which concerns the financial orders, compelling the father to pay the mother $36,000 promptly (Order 15) when he had proposed that he pay her $40,000 by four annual instalments. Given the modest sums involved, the mother’s admission of not disclosing less than $4,000 was enough for the appeal to proceed fairly without the need for either an adjournment or the further evidence.
Affidavit of the father’s partner
Lastly, the father sought to adduce evidence from his partner in which she denied experiencing family violence by the father, referred to her alleged apprehension of harassment by the mother, and made gratuitous commentary on the correctness of findings made by the primary judge. The affidavit contains a number of unparticularised statements, opinions and conclusions. Many of the alleged incidents referred to by the father’s partner are undated.
To the extent such evidence could possibly be considered relevant and probative, the father decided not to call her as a witness at trial. That was his forensic choice. He cannot now call evidence in the appeal which he could easily have called at trial.
For these reasons the Application in a Proceeding is dismissed.
THE APPEAL
The majority of the grounds of appeal in the Amended Notice of Appeal focus on parenting issues.
Ground 3 comprises a complaint of the father’s denial of procedural fairness, which must be addressed first as it has the potentiality to rupture the integrity of the trial (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
Ground 10 comprises the only challenge to the property settlement orders and will be addressed last.
The balance of the grounds collectively comprise the challenges to the parenting orders.
Ground 3 – Denial of procedural fairness
This ground is pleaded as follows:
Against the orders of the trial judge, all the mothers trial material was filed significantly late or not at all. The mothers key witnesses did not provide any current affidavits as required, and some materials were filed only days before the trial, leaving the Father with no fair or adequate opportunity to prepare or respond.
(As per the original)
In essence, this is a complaint that the primary judge allowed the mother to rely on affidavits not filed in accordance with the trial directions made by the primary judge on 24 July 2023. Pursuant to those procedural orders the affidavits of the mother and her witnesses were to be filed and served by 11 September 2023. The trial directions further provided that affidavits relied upon for previous hearings could not be relied upon as evidence in chief at trial.
Whilst counsel for the father initially raised objection to some of the affidavits at trial, those objections were not maintained. In relation to some of the affidavits the objections were accordingly inferentially abandoned. In relation to other affidavits, such objections were explicitly abandoned.
The father did not identify to us who he regarded as the mother’s “key witnesses”. From his Summary of Argument, we can glean that his complaints relate substantially to the evidence of the mother’s general practitioner, Dr K and to a lesser extent the evidence of the mother’s friend, Ms L. The affidavits of those witnesses were filed on 26 October 2022 and on 10 November 2022 and accordingly the evidence in chief of each of those witnesses was neither new or surprising to the father. He knew several days before the trial that the mother would rely on their evidence as their affidavits were referred to in her Outline of Case as being affidavits upon which she sought to rely. They gave evidence on the second and third day respectively – and accordingly this vitiates any assertion that he had no opportunity to provide instructions on their evidence to his counsel.
In his Summary of Argument, the father refers to affidavits by other witnesses for the mother not filed in compliance with the trial directions:
(a)The mother’s sister, Ms S was not called by the mother. Her affidavit was not read into evidence and was not considered by the primary judge;
(b)In relation to the mother’s trial affidavit, filed 2 October 2023 counsel for the father made no objection to this being relied upon. The father had the opportunity to respond to that affidavit – and leave was granted to him to rely upon an affidavit in reply filed 23 October 2023. He was also permitted to rely on an affidavit of his friend, Ms N filed on 23 October 2023, not in accordance with the trial directions;
(c)Save in relation to particular parts of Ms F’s affidavit, the maternal grandfather’s partner, counsel for the father specifically advised the Court that no objection was taken to the affidavits filed on 17 October 2023 affirmed by the mother’s sister Ms H, Ms F and the maternal grandfather (Transcript 30 October 2023, p.10 lines 7–9). Parts of Ms F’s affidavit were struck out consistently with the father’s objections as to admissibility;
(d)In relation to the affidavit of the mother’s psychologist, Ms J, the father’s counsel confirmed with the Court that he did not maintain any objection as her evidence was a repetition of her earlier affidavit (Transcript 30 October 2023, p.11 lines 15–41).
Where no objection was pressed, leave was accordingly granted for the mother to rely on the affidavits filed not in accordance with the trial directions. No adjournment of the trial was sought by the father. All the mother’s witnesses were available for cross examination.
The father is bound by the manner in which his counsel conducted the trial, unless he can show such representative conduct caused a miscarriage of justice (TKWJ v The Queen (2002) 212 CLR 124 at [8] and [74] (“TKWJ”)). No such miscarriage is evident from the circumstances under which the mother was allowed to rely upon the evidence which fell beyond the original trial directions.
There was no denial of procedural fairness and this ground fails.
The parenting appeal
Grounds 1, 4, 5, 6, 7, 8 and 12
These are complaints of findings made against the weight of evidence.
It is well settled that this Court does not have the authority to alter a decision on appeal only on the basis that we may have reached a different conclusion than that reached by the primary judge. Rather, the father is required to establish that the decision of the primary judge could not be a proper exercise of her discretion: House v The King (1936) 55 CLR 499. As observed by the Full Court in Hedlund & Hedlund (2021) FLC 94–065 at [37] (“Hedlund”), to the extent that these grounds assert that the primary judge gave inadequate or insufficient weight to parts of the evidence, “none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust”.
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 at [186.1] per Kirby J). It is not sufficient that the father does not agree with the conclusions reached by the primary judge or believes that greater weight should have been given to certain parts of the evidence, and less weight to other parts. The father does not raise any error of fact or law. Nor does the father identify any irrelevant consideration taken into account by the primary judge, or any relevant consideration that was ignored. The father’s complaints and submissions in support of his appeal fall well short of demonstrating that the parenting judgment was manifestly unjust or unreasonable (Hedlund at [12] and [36]-[37]).
Her Honour carefully and thoroughly evaluated the evidence and provided clear reasons as to each of the impugned findings. She followed the correct legislative pathway. She comprehensively and carefully weighed and considered the advantages and disadvantages to the child. It is not an error that the primary judge came to a different conclusion in relation to various matters in dispute than agitated by the father, or that she put more or less weight than he contended on various matters.
Parts of the father’s Summary of Argument in support of these grounds do little more than repeat the submissions that were made to – and rejected by – the primary judge. It should be observed that Grounds 5, 6, 7, and 8 are not even addressed in the father’s Summary of Argument. Although he disavowed the proposition those grounds were thereby abandoned, it is not for the Full Court to look for appealable errors the appellant does not deign to elaborate.
In relation to Ground 12, whilst pleaded as a weight challenge, it is really a complaint about court process – asserting that there should have been an Independent Children's Lawyer, and an updated family report prepared.
The ground of appeal and the submissions advanced in support of it fail to identify any error arising from there being no Independent Children's Lawyer, or from the fact that the family report was not updated prior to the trial. The father’s counsel did not seek the appointment of an Independent Children's Lawyer, nor an updated report. In the circumstances it cannot now be asserted by the father that it was some nebulous error not to have an Independent Children's Lawyer or an updated report.
These grounds fail.
Ground 2
This ground is pleaded as follows:
In circumstances where the evidence of [the Family Report writer] "was accepted in its entirety" the primary judge failed to give reasons or adequate reasons as to why the court should not accept the recommendation made by [the Family Report writer] that the parties should have equal shared parental responsibility.
The primary judge gave clear and detailed reasons as to why she did not accept the recommendation for equal shared parental responsibility – which recommendation was expressed to be conditional upon findings by the Court as to family violence and coercive control. Her Honour weighed and assessed the evidence of the parties and their witnesses, and carefully set out her reasons for finding that the father had subjected the mother to controlling and intimidating behaviour ([81]–[82], [84]–[86], [90], [143]–[147], [153], [155], [160], [217]–[220]).
Her Honour was satisfied the presumption of equal shared parental responsibility was rebutted. She provided clear and cogent reasons for the making of the orders she did in relation to the allocation of parental responsibility, including questions of practicability if the mother and child lived in the United Kingdom and the father in Australia ([277]–[278]).
This ground fails.
Ground 9
Ground 9 is a complaint about the performance of the father’s own lawyers. This ground was also not addressed in the father’s Summary of Argument. As already observed it is not for the Full Court to look for appealable errors where the appellant does not deign to elaborate.
The ground does not reveal any error on the part of the primary judge – nor assert that the incompetence of counsel was such that the appellant was not afforded a fair trial, or that it produced a miscarriage of justice (see TKWJ ).
Accordingly, this ground need not be considered.
Ground 11
Finally, ground 11 asserts “significant post-trial developments”, which were articulated to be the dismissal of criminal charges brought against the father, the mother’s increasingly abusive correspondence with him, and a message he received from the mother telling him she hoped not to have to deal with him any further.
That criminal charges might have been pending against the father at the time of trial were not taken into account by the primary judge as a factor which influenced the parenting judgment. Accordingly, the father’s subsequent acquittal was irrelevant. Any further unpleasant correspondence between the parties since the trial would only seem to be a perpetuation of the conflict they experienced before and during the trial and is nothing new. The father made no application to re-open the evidence while judgment was reserved for seven months after the trial was complete and, for reasons already given, his application to adduce further evidence in the appeal is refused.
This ground fails.
The appeal against the property orders
Ground 10 – that the orders are not just and equitable
This ground is pleaded as follows:
10. The order made by the primary judge that the father pay the mother the sum of $36,000 in 60 days is not just and equitable in circumstances where:
(a)There was no evidence before the primary judge that the father has those funds immediately available to him or any capacity to borrow such amount within 60 days;
(b)There was a finding that that the father has a tax debt of $44,000, although this was not included in the pool of assets, liabilities and financial resources; and
(c)There was unchallenged evidence before the court that the father owes his parents $53,000 for his legal fees.
The father advanced no submissions in support of this ground in his Summary of Argument.
The father’s own position at trial was that he would pay the wife $40,000, albeit by way of four payments of $10,000 over an extended period.
In relation to ground 10(a), the father was cross examined extensively as to his income and income earning capacity. Her Honour observed that his evidence regarding these matters was “unimpressive” and found that he had “not been candid with the Court as to the extent of his income” ([246] and [251]). Her Honour further determined that she did not accept the father’s evidence as to his income ([328]) and that his independent service provider business now afforded him “a significant income”.
There is no challenge to these findings by the primary judge.
There is also no challenge to the findings by her Honour that the father has assets and equitable interests of approximately $240,000 (although the father said additional liabilities of his should have been included on the balance sheet).
These matters provide an ample basis for the primary judge to make the orders for payment within 60 days. It is a matter for the father as to how he raises the funds to comply with that order to pay.
In grounds 10(b) and (c) the father asserts the asset pool was wrongly identified by the primary judge. We do not agree.
Her Honour gave clear and cogent reasons for excluding the taxation debt of the father from the asset pool. There was a lack of discovery by the father as to that liability, and no evidence adduced as to when the liability accrued, or when it would be payable. Her Honour appropriately excluded it from the pool, but stated she would take it into account “in the overall assessment of s 90SF factors” ([371]).
In relation to the monies the father asserted he owed his parent for legal fees, the general rule pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”) is that each party bears their own legal costs. Where there were no submissions made that there were circumstances that justified a departure from that rule, it would have been inappropriate for the primary judge to include monies borrowed to pay legal fees when calculating the asset pool.
Moreover, the assertion that an alleged debt by the father to his parents was “unchallenged” is not correct.
First, the joint balance sheet tendered by the parties at the conclusion of the hearing did not include a line item of $53,000 as being an amount asserted the father as being owed to his parents by way of legal fees. Indeed, the father did not identify that any monies were owed by him to his parents in that joint balance sheet.
Secondly, that monies were owed by the father to his parents for any purpose was the subject of challenge. During the hearing the paternal grandfather was cross examined about monies allegedly owed by the father to him. Her Honour observed that the paternal grandfather was:
342.…unable to particularise what amounts were advanced to the father or when. When invited to estimate the amounts of monies advanced by him to the father in 2017, he stated that he did not know and could not provide a rough estimate of the amounts. He was asked whether he had recorded the loans somewhere and responded that “we had a book”. When questioned whether that book was still in existence, [the paternal grandfather] responded that there is a book where the loans are recorded but as amounts are repaid, the pages are pulled out and thrown away.
343.[The paternal grandfather] confirmed that there was no written record of the total amount advanced to the father. He justified his inability to provide particulars on the basis that “it’s a family matter – we’re not accountants”.
Her Honour found the paternal grandfather to be an unimpressive witness, describing his evidence at times as “vague, non-responsive and evasive” ([353]). Accordingly, she treated the assertion that funds were owed with considerable scepticism.
The Court is under no obligation to include all liabilities of the parties in determining the joint asset pool. It is a matter of discretion. In circumstances where the liability was vague and uncertain it was well within her Honour’s discretion to disregard the asserted liability.
The father has failed to identify any error on behalf of the primary judge in relation to her treatment of these asserted liabilities, or her determination that the payment is to be made within 60 days.
This ground fails.
DISPOSITION
For these reasons the appeal is dismissed.
COSTS
Counsel for the mother advised that she and her instructor were engaged to act on a pro bono basis. However, in the event the appeal was dismissed, the mother sought costs of $8,030. The father sought that he be paid the costs of the transcript and the filing fee.
Pursuant to s 117 (1) and s 117 (2) of the Act , the general rule is that each party to proceedings will bear their own costs, unless the Court is satisfied there are circumstances that justify the making of an order for costs.
Subsection 117(2A) of the Act sets out a list of matters the Court must consider in determining whether to exercise its discretion and make an order as to costs. No one factor must be present, and no particular factor is to be given more or less weight than any other.
Of relevance to the application made by the mother for her costs in the appeal are subsections (a) the financial circumstances of each of the parties; and subsection (e) whether a party has been wholly unsuccessful.
It is the mother’s case that the father has a greater income earning capacity than she does, and that he has greater financial resources. However, she has not had to fund the appeal herself.
The father denies he has access to significant income or resources. Of course, impecuniosity is not a bar to a costs order being made (Mallory & Mallory [2020] FamCAFC 62 at [9]).
The father has been wholly unsuccessful. None of the grounds of appeal have been upheld. Some grounds were incompetent or misconceived.
Pursuant to s 117(2A)(g) of the Act the Court may also take into account such other matters as the Court considers relevant. We are of the view that it is relevant that these parties will require funds to meet the costs of international travel in accordance with the orders of the primary judge. An order for costs against the father would likely reduce his ability to fund travel for himself or for the child between Australia and the United Kingdom. We regard that as an important consideration in this matter.
Taking all the factors into account we are not satisfied that there are circumstances that justify making a costs order against the father and that application is dismissed.
As the father was wholly unsuccessful, we also do not see any basis upon which it would be justified to make a costs order in his favour. At any rate, the father was unable to adequately particularise the costs sought by him. Accordingly, in so far as an application for costs was made by the father, it is also dismissed.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Carter & Curran. Associate:
Dated: 21 November 2024
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