Gin & Hing (No 3)
[2024] FedCFamC1A 124
•7 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gin & Hing (No 3) [2024] FedCFamC1A 124
Appeal from: Gin & Hing (No 8) [2023] FedCFamC1F 954 Appeal number: NAA 353 of 2023 File number: MLC 4528 of 2010 Judgment of: ALDRIDGE, CAREW & SCHONELL JJ Date of judgment: 7 August 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence on appeal – Where the appellant sought leave to issue a subpoena to a regulatory body to obtain further evidence in aid of a ground of appeal – Leave granted to issue the subpoena – Where the Court need not address the ensuing application to admit further evidence as the appeal is otherwise allowed – Application dismissed.
FAMILY LAW – APPEAL – Appeal from final parenting orders – Adequacy of reasons – Where the primary judge erred in his treatment of s 60CC(3)(d) – Where the primary judge wrongly attributed the views of a 10 year old to those of a teenager – Inordinate delay – Appeal allowed.
Legislation: Family Law Act 1975 (Cth) s 60CC (repealed)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Evidence Act1995 (NSW)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.34
Cases cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
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
Fowles & Fowles (No 2) [2024] FedCFamC1A 115
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145
Number of paragraphs: 72 Date of hearing: 29 April 2024 Date of last submissions: 22 July 2024 Place: Heard in Melbourne, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Dixon SC and Dr Smith Solicitor for the Respondent: Clancy & Triado ORDERS
NAA 353 of 2023
MLC 4528 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GIN
Appellant
AND: MS HING
Respondent
ORDER MADE BY:
ALDRIDGE, CAREW, SCHONELL JJ
DATE OF ORDER:
7 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 2 July 2024 to adduce further evidence is dismissed.
2.The appeal is allowed.
3.The orders made 22 November 2023 are set aside from the first listing of the remitted matter before a judge of this Court.
4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the disbursements incurred by him in the appeal.
6.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.
7.The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.
AND THE COURT DIRECTS THAT:
A.The Principal Registrar of the Court is requested to provide a copy of these Reasons for Judgment together with the appellant’s affidavit purportedly witnessed on 1 July 2024 and the affidavit of the respondent’s solicitor filed 15 July 2024 to the Law Institute of Victoria and the Victorian Legal Services Commissioner for their consideration.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Gin & Hing has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, CAREW & SCHONELL JJ:
By Further Amended Notice of Appeal, Mr Gin (“the appellant”) appeals parenting orders made by the primary judge on 22 November 2023. The appeal was opposed by Ms Hing (“the respondent”). The Independent Children’s Lawyer (“the ICL”) did not appear on the appeal.
The Further Amended Notice of Appeal ultimately proceeded on five grounds. The grounds fell into three broad categories. The first category, Grounds 1, 4 and 6, challenged the integrity of the trial process including wide-ranging allegations of procedural fairness, conflict of interest and apprehended bias. Ground 2 contended error by inadequacy of reasons in multiple respects while Ground 3 contended error in relation to the application of weight.
Where grounds such as 1, 4 and 6 make contentions that go to the integrity of the court process, then ordinarily those matters should be dealt with prior to addressing the balance of the appeal (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
For reasons that will become apparent, we are satisfied, notwithstanding challenges to the integrity of the trial process, that the appeal should otherwise succeed. In those circumstances it is otiose to consider those grounds as the matter will be remitted for hearing before a judge other than the primary judge.
BACKGROUND
The parties are the parents of the only child the subject of the proceedings. The child was born in March 2010.
Either late in March 2010 or early April 2010 the parties separated.
In May 2010 the appellant commenced proceedings for parenting orders. The parties have been in almost continuous litigation since that time.
Since at least 2014 the child has lived with the respondent and spent time with the appellant in varying time regimes. On 6 February 2018 orders (“the February 2018 orders”) were made by consent for the child to spend time with the appellant for six nights a fortnight. This was the time arrangement that existed at the time of the hearing.
The parties’ affidavits were filed in May and June 2019 in anticipation of the hearing commencing in August 2019. While the appellant subsequently filed updating evidence in 2020 and again in 2022, the respondent did not.
In addition to the lay evidence, a number of expert reports were relied upon, including nine reports prepared by the single expert clinical psychologist. The last of her reports was dated 20 July 2020. In that report she recorded the child wanted to spend less time with the appellant and more time with the respondent. The child was 10 years old at the time her views were expressed.
The hearing took place over 31 days. The days were not continuous but regrettably spread out over four years. It commenced with five days in August 2019. There was then a single day a year later in August 2020, four days in September 2020, and then a break of a month with a further three days in October 2020. There were then two days in July 2021, a single day in November 2021, three days in February 2022, two days in March 2022, a single day in April 2022, three days in September 2022, four days in February 2023 and finally two days in July 2023.
Judgment was delivered on 22 November 2023.
THE PRIMARY JUDGE’S REASONS
The primary judge in the opening paragraphs of the reasons observed:
1The child relevant to this litigation has been the object of long term disputation between her parents for all but one year of her life. The child is almost 14 years of age. Her parents continue to wage war over parental responsibility for her, with whom the child will live and the time the child should spend with each parent.
2Each parent has remarried and has had other children. The child moves happily between households coping perfectly well with her half-siblings and with the new spouses of each parent. According to expert evidence adduced in this litigation, the child is performing well at school and in her extra-curricular activities.
…
16No evidence exhibited that the child has difficulty when living at either parent’s household or in mixing with the other half-siblings in the homes of each parent.
17If anything, the evidence reveals that the child copes extremely well in her current circumstances. This child has been described as intelligent and mature for her years.
The primary judge then recorded the parties’ competing proposals and commenced with a consideration of parental responsibility.
His Honour acknowledged the single expert’s concern of the impact of the litigation and that consideration should be given to a sole parental responsibility order in favour of the respondent (at [49]). His Honour observed that the child had a meaningful relationship with both parents, recorded the parents remained mutually mistrustful and that the prospect of shared parental responsibility placed the child in emotional jeopardy (at [61]).
The primary judge then recorded:
67As against that it must be acknowledged that the child has lived her entire life in the competitive environment presented by the conflict between her parents. Yet despite that conflict, the child currently presents (as [the single expert] considered) as an intelligent, tolerably well adjusted, vibrant, young teenage girl who performs well at school and who enjoys extra-curricular activities.
68[The single expert] was cross-examined by the [appellant] about her views of the [appellant’s] competitive behaviour. She did not resile from her evidence, instead maintaining that the [appellant] was highly competitive and that his behaviour had not markedly changed in that regard. [The single expert] also reported that as the child develops in her teenage years the child has indicated a desire to spend more time with the [respondent]. To my way of thinking, [the single expert]’s recommendation that consideration should be given to an order allocating sole parental responsibility in favour of the [respondent] has merit.
…
70Section 60CC(3)(a) calls for an examination of any views expressed by the child. The child has been psychologically examined by [the single expert] over many years. Most recently [the single expert] reported that the child wishes to live with the [respondent] and that the child wishes her time with the [respondent] to increase. Section 60CC(3)(a) embeds the recognition that having regard to the child’s maturity and level of understanding, particular weight may or may not be given to the child’s expressed wishes. In this case, the child is intelligent (as [the single expert] states, there being no contrary evidence on point) and is now aged 14 years. [The single expert] has recommended that the views of the child be given effect. That accords with my assessment. Unsurprisingly, the evidence does not reveal whether the child has been asked in direct terms whether the child wishes the [respondent] to have sole parental responsibility for the child. Equally, the evidence does not disclose that the child has been directly asked whether the child wishes both parents to have equal shared parental responsibility for the child. That may well be for the simple reason that under s 61B of the Family Law Act “parental responsibility” is a complex concept incorporating questions of law such as “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
71A teenager is most unlikely to be able to answer a question about those issues. [The single expert] has offered the opinion that the [respondent] should be allocated sole parental responsibility so as to reduce the unending conflict between the child’s parents arising from the [appellant’s] highly competitive approach towards parenting.
…
73In my view, the child has no prospect of being free of the [appellant’s] unrelenting conflict towards the [respondent] if parental responsibility is shared. In my view [the single expert] is correct in recommending sole parental responsibility for the child in favour of the [respondent].
(Original emphasis)
In addressing s 60CC(3)(b) of the Family Law Act 1975 (Cth) the primary judge observed:
75The evidence revealed that the child is loved and supported by all persons in her extended family. I did not detect any issues as between any of the persons identified in the preceding paragraph and the child. In fact, the child is fortunate to move seamlessly between households, deriving the benefit of affection, support and love from both households.
In relation to s 60CC(3)(g) the primary judge observed:
84Section 60CC(3)(g) invited investigation into the maturity, sex, lifestyle and background of the child, her parents and any other characteristic the court considers relevant. The child is female, a teenager, mature (according to [the single expert]) and of Country Q heritage. She has attended Country Q language school on weekends over the years and observes Country Q festive occasions.
(Original emphasis)
In relation to the question of an order least likely to lead to further proceedings the primary judge observed:
88Section 60CC(3)(l) invites the court to consider whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings in relation to the child. Irrespective of the orders make I this case, I entertain no expectation or even possibility that the war between the child’s parents will abate. The hostility between the parents is entrenched. They have fought for the life of the child on issues concerning the child. Courts have limited scope to alter an adult’s thought processes. However, when those thoughts translate into action and reactions that adversely impact a minor, such as the child in this case, the court can only do its best to fashion such orders that it considers will have the effect of reducing the negative impact that a parent’s behaviour has upon her or his child.
(As per the original)
The primary judge concluded that removal of the appellant from parental responsibility would “go some way to relieving the psychological impact upon the child of the [appellant’s] competitive approach to parenting” (at [93]).
The primary judge then turned to consider time between the child and the appellant, observing that the appellant sought to increase his time from six nights a fortnight to week-about in school terms, while the respondent sought a reduction to two nights a fortnight in school terms.
The primary judge recorded the child told the single expert that she preferred to spend most of her time with the respondent and that the single expert’s opinion was that the child’s views were not the consequence of influence by the respondent and should be accorded considerable weight (at [97]).
The primary judge observed that whilst possibly repetitive, the subsections of s 60CC(3) “called for separate attention in the context of the parties’ proposed parenting orders in respect of time” (at [103]). In consideration of the matters under s 60CC(3)(b), his Honour observed:
105For the purposes of s 60CC(3)(b) the nature of the child’s relationship with her parents and with each parent’s current spouse has already been addressed. In short, the child enjoys a favourable rapport with the [appellant] and [the appellant’s current spouse], with the [respondent] and [the respondent’s current spouse] and all half-siblings. No evidence emerged to suggest that the child’s expressed wish for more time with the [respondent] should not be given effect or that the child’s expressed wish is otherwise than in her best interests.
…
107It must not be overlooked that [the single expert] reported that the child stated that she (the child) would prefer 13 days with [the respondent] and one day with [the appellant] or 12 days with the [respondent] and two days with the [appellant]. On that calculation of days, 13 days in 14 days or 12 days in 14 days with the [respondent] represents the overwhelming majority of fortnightly time with the [respondent]. The [appellant] seeks equal time. The [appellant’s] proposal does not align with the child’s wishes. The child is mature enough and intelligent enough for her views to be seriously considered.
(Original emphasis)
His Honour then addressed the remaining s 60CC considerations and concluded:
117The skirmishing between the parents in this case has been on foot since the child was an infant. To suggest that any particular order will cause the vitriol between the parties to abate seems as unlikely as it is unrealistic. That said, that does not mean an order should not be made. Orders should be made if for no other reason than to endeavour to quell the controversy between the [appellant] and the [respondent]. The hostility between the child’s parents has been normal to the child since she could talk. Yet that is no reason why, over the time between the date of these orders and the date on which the child turns 18, orders should not be made that go some distance to improving the child’s life...
The primary judge made orders that the respondent have sole parental responsibility, the child live with her and spend time with the appellant including each alternate weekend in school terms and for half of each school holiday period.
A stay of the orders was refused on 2 February 2024.
APPLICATION IN AN APPEAL
The appellant, in the course of the appeal, filed in excess of four Applications in an Appeal. One such application sought leave to issue a subpoena to a regulatory body for the purposes of obtaining further evidence in aid of one of the grounds of appeal. Given the nature of the application and the provisions of r 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), it was considered more appropriate that it be determined at the hearing of the appeal.
Submissions on the application were heard at the conclusion of oral argument on the appeal. Following submissions, we determined to grant the appellant leave to issue the subpoena and later provided a timetable for written submissions as to the admission of further evidence, the last of which were to be filed by 22 July 2024. The parties were advised that reasons for granting leave to issue the subpoena would be given as part of the reasons on the appeal. What follows are those reasons.
The appellant’s application to adduce further evidence sought, amongst other orders, leave to issue a subpoena to a regulatory body governing the practice of the single expert. The appellant contended that there was a reasonable basis to believe that the single expert had been either suspended or her right to practice as a psychologist withdrawn. This was said to have occurred following the conclusion of evidence but before delivery of judgment. The appellant says he only became aware after delivery of judgment.
The appellant submitted that if it were established that there had been conditions placed on the single expert’s right to practice it would undermine the integrity of her evidence and the weight the Court could place upon it. The respondent opposed the application and submitted the respondent was “fishing”, that there was currently no evidence that the asserted action has occurred and that it was not relevant to an issue in the appeal.
Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) provides that this Court may, in its discretion, receive further evidence on an appeal. The High Court in CDJ v VAJ (1998) 197 CLR 172 laid down clear guidelines that are to apply to the reception of further evidence in an appeal.
The present application of the appellant has two parts: leave to issue the subpoena and, depending upon production and inspection, leave to adduce further evidence in the appeal consistent with the approach identified in National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 381–385. The purpose of a subpoena is to aid in the proper administration of justice (Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570) and is “crucial to the ability of a party to investigate the facts and assemble evidence to prove a case” (Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [84]).
The present circumstances are highly unusual. There is some evidence in the appellant’s affidavit to ground the apparent relevance of the documents. The matters, if established, arose at a time when the matter was before the primary judge but prior to the delivery of judgment and may, if established, go to the integrity of the single expert’s evidence.
The High Court makes plain that the Court may receive further evidence where, if accepted, it would demonstrate that the order under appeal was erroneous and that a different result may have been produced had the evidence been available. The grant of leave to issue the subpoena was not a determination of the question whether to admit further evidence, just whether the appellant should be given an opportunity to obtain the evidence and thereafter make submissions as to its reception.
In view of the assertion going to the integrity of the single expert and the importance that single expert evidence plays in the resolution of disputes before the Court, it is possible that the further evidence may have produced a different result. Beyond the question of cost, there could be no prejudice to the respondent.
We were satisfied that the appellant should be granted leave to issue the subpoena and thereafter make such submissions as appropriate on the application to adduce further evidence. At that time the appellant would have to demonstrate that it would have produced a different result.
To facilitate such a result, directions were then made for the filing of the subpoena and for written submissions.
Disposition of application to adduce further evidence
Each of the parties, following production and inspection of the subpoenaed documents, prepared written submissions as to the reception of the further evidence in the appeal. We have considered those submissions. As we are satisfied that the appeal should be allowed on other grounds, then consistent with the principles of judicial economy and the objects of the Act calling for the quick resolution of disputes and the efficient delivery of justice, we need not address the application to admit further evidence on the appeal (Boensch v Pascoe (2019) 268 CLR 593) and it will be dismissed.
THE APPEAL
While the Further Amended Notice of Appeal addressed five separate grounds, it is dispositive of this appeal to only consider Ground 2. The ground broadly contended error on the part of the primary judge by failing to give adequate reasons. The Summary of Argument identified with slightly more precision six discrete instances of asserted error. One such instance was an averred failure by the primary judge to provide reasons and/or consider s 60CC(3)(d).
To succeed on an appeal contending error in the exercise of discretion, the appellant must meet the challenge posed by the plurality of the High Court in House v The King (1936) 55 CLR 499 at 505 namely:
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.
Whilst the appellant’s ground was cast in terms of an absence of reasons and/or failure to consider a relevant consideration, as will become apparent, it is open to include that the primary judge also erred in his treatment of s 60CC(3)(d).
The section was cast prior to the 2024 amendments in the following terms:
60CC How a court determines what is in a child’s best interests
…
Additional considerations
(3) Additional considerations are:
…
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The primary judge’s consideration of the subsection appears in two places:
78Section 60CC(3)(d) is concerned with the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either parent or other child or person with whom the child is living. This section has no application on the orders proposed by either party as no separation is contemplated by either set of orders.
…
109Similarly, the proposals in relation to time did not raise issues concerning changes in the child’s circumstances to which s 60CC(3)(d) was directed.
(Original emphasis)
The appellant submits that the primary judge erred in describing, as his Honour did at [78], that the section had no application “as no separation is contemplated by either set of orders” (appellant’s Amended Summary of Argument dated 20 April 2024, paragraph 27(2)).
An analysis of the section discloses that it is not limited just to a change occasioned by a separation. The introductory words make clear that the section (where relevant) focuses attention on the “effect of any changes”. Here, contrary to the primary judge’s finding, the proposals of one of the parties called for a significant change in the child’s circumstances.
The February 2018 orders, which were in place at the time of the hearing, provided for the child to live with the appellant for six nights a fortnight in school terms. By the time of judgment, this arrangement had been in place for over five and a half years. The respondent’s proposal called for a reduction in the appellant’s time with the child from six nights a fortnight in school terms to two nights a fortnight in school terms.
The significance of any change in the child’s circumstances loomed large and called for its consideration, not just in terms of a reduction in time, but also in view of other findings made as to the child’s then circumstances. For reasons that will become apparent, there was a jarring juxtaposition between the findings and the result that can only be explained by the primary judge’s failure to properly consider s 60CC(3)(d) and the erroneous weight placed on the child’s views in equating the views of a 10 year old with those of a teenager.
The primary judge found that the child had “been the object of long term disputation between her parents for all but one year of her life” (at [1]) and “to suggest that any particular order will cause the vitriol between the parties to abate seems as unlikely as it is unrealistic” (at [117]). The primary judge also found that the child’s views were genuinely expressed and not the subject of influence by the respondent at [97]–[99].
As against those findings, the primary judge found the child was living in circumstances where she moved happily between households, was coping well with her half-siblings and each of her parents’ new spouses and was performing well at school (at [2]). His Honour found that the child had successfully adjusted to living between the two households (at [3]) and there was no evidence that she had difficulty living in either household (at [16]) and was coping extremely well in her current circumstances (at [17]). The primary judge recorded the single expert’s evidence that despite the conflict the child was well adjusted and vibrant and was performing well at school and in her extra-curricular activities (at [67]).
In light of those findings, any change to the child’s circumstances became a highly relevant consideration. Whether it be because of a misinterpretation of the import of the section or for other reasons not explained, the primary judge did not ever turn his attention to a consideration of the impact on the child of a change in the child’s circumstances by a reduction in time with the appellant. In that sense, there was no consideration by the primary judge of the impact of the change on the child’s relationship with the appellant, the respondent, her half-siblings, the appellant’s new spouse, her school performance, or her engagement in extra-curricular activities.
Circumstances where a child moved happily between both households and was well adjusted notwithstanding expressed views for less time and long established parental conflict, necessitated close scrutiny of whether the change might compromise her current happiness and adjustment. Here, no such scrutiny occurred. Absent that scrutiny, the Court could not be satisfied that the proposed change wrought by the orders was in the child’s best interests.
An examination of the primary judge’s reasons as a whole reveal that the foundations for a reduction in the child’s time with the appellant were seemingly sourced in a desire to lessen the conflict and in reliance on the child’s expressed views. Where the finding was that the conflict was unlikely to abate, the considerable weight placed by the primary judge on the views of the child as the foundation for a reduction in time assumed greater significance.
In that respect, the primary judge addresses at length the child’s views, recorded the single expert’s evidence that the child’s views should be given considerable weight, found the child to be intelligent and mature, found that her views were not the subject of influence by the respondent and accordingly should be attributed considerable weight. The reasons record:
105.…No evidence emerged to suggest that the child’s expressed wish for more time with the [respondent] should not be given effect or that the child’s expressed wish is otherwise than in her best interests.
In the context of the importance of the views of a child, the High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662, observed:
35....whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed…
The primary judge, in assessing the importance to be placed on the child’s views, observed:
67…the child currently presents (as [the single expert] considered) as an intelligent, tolerably well adjusted, vibrant, young teenage girl...
68…[The single expert] also reported that as the child develops in her teenage years the child has indicated a desire to spend more time with the [respondent]...
…
70…Most recently [the single expert] reported that the child wishes to live with the [respondent] and that the child wishes her time with the [respondent] to increase...
…
84…The child is female, a teenager, mature (according to [the single expert])...
Each of these findings are tainted with error. The child’s view was not that of a teenager. The child was not interviewed or assessed by the single expert when she was a teenager, her views were not recently expressed, and the single expert did not give evidence that the child was a mature teenager.
The primary judge relied on the single expert for evidence of the child’s views. The single expert last interviewed the child in July 2020 at a time when the child was 10 years old. At the time of judgment, the child was 14. Here, the primary judge gave the child’s views considerable importance, but in so doing, equated the views of a child expressed when 10 years old with those of a teenager. Whether it be expressed as factual error material to the overall determination or a failure to give reasons as to why the views of a 10 year old should be assumed to be those of a teenager matters little in the final analysis.
Here the views of the child assumed significant importance and were given considerable weight by the primary judge in reducing the appellant’s time from six nights to two nights a fortnight during school terms. The weight given then loomed large in the discretionary determination where other findings were irreconcilable with a reduction in the child’s time with the appellant.
We are satisfied that there is merit to Ground 2 in the failure by the primary judge to consider s 60CC(3)(d) and in wrongly attributing the views of a 10 year old to those of a teenager.
While not the subject of the appeal, we consider it necessary to remark upon the inordinate delay occasioned to the parties in the hearing of this matter. Recently a differently constituted Full Court in Fowles & Fowles (No 2) [2024] FedCFamC1A 115 (“Fowles”) presciently observed:
16.It is unfortunate that no adequate block of time was set aside to finish the hearing at an early stage, running it over and displacing other matters if necessary...
17.No trial in any court should last this length of time and, ultimately, it is the responsibility of a trial judge to ensure that justice is delivered in a timely manner.
As with Fowles, the delay in this matter arises in part as a result of the intervention of Covid-19 as well as the manner in which the appellant chose to conduct the hearing. That said, by the end of the first set of allocated days it became incumbent on the primary judge to set aside sufficient time in one block to bring the matter to a conclusion and to actively case manage the trial by setting time limits for cross-examination if considered necessary. That did not happen. Instead, the matter lingered on with sporadic hearing dates over the next three years. We cannot ignore that had a block of days been allocated so the matter could complete in one sitting period, then the appealable errors identified may have been avoided (see Manifold & Alderton (2021) FLC 94-015 at [37]).
For the above reasons, we are satisfied the appellant has established error on the part of the primary judge. The appellant’s Further Amended Notice of Appeal did not identify as a subject of the appeal the making of a sole parental responsibility order in favour of the respondent despite seeking in both the Further Amended Notice of Appeal and Amended Summary of Argument, orders for equal shared parental responsibility.
As we are satisfied the appeal should be allowed and the matter remitted for hearing before another judge it is unnecessary to consider the remaining grounds including those that address the integrity of the hearing. Consequentially, all of the orders will be set aside. It only remains to be considered when.
In circumstances where there was no stay of the orders, and the child has been living under the existing parenting orders for now nearly nine months, we do not consider that it is in the child’s best interests, in the absence of updating evidence, to set aside the orders instanter. In view of those circumstances, we are satisfied the orders are to be set aside from the first listing of the remitted matter before another judge of this Court.
In that way, the parties can on the remitter address the Court by further application supported by more current evidence on what orders they consider are, at that time, in the best interests of the child.
COSTS
In circumstances where the appeal has succeeded on a question of law, it is appropriate that costs certificates be granted (Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9).
As the appellant is unrepresented, he is entitled to a certificate for the appeal limited only to his disbursements but is entitled to one for the rehearing. The respondent will be granted a certificate for the appeal and rehearing.
We will make orders accordingly.
THE APPELLANT’S CONDUCT AS AN OFFICER OF THE COURT
As part of the appellant’s Application in an Appeal filed 2 July 2024, he relied upon an affidavit purportedly witnessed on 1 July 2024 before a solicitor. An affidavit sworn by the respondent’s solicitor in reply annexes correspondence from the solicitor denying he witnessed the appellant’s affidavit.
The witnessing of an affidavit is not some arcane matter of mere process. It is a solemn attestation that the content of the affidavit is truthful. The significance of it to the judicial process is reflected in the Evidence Act1995 (NSW) and the sanctions imposed by its breach in the various Oaths and Crimes Act of each State. It goes to the very heart of the legal process.
The assertion in the solicitor for the respondent’s affidavit appears not to be in issue and is even more egregious where the appellant is an officer of the court. The manner of the appellant’s response by obfuscation and personal attack does him no service.
We are satisfied that it is a matter that should be referred to the Law Institute of Victoria and the Victorian Legal Services Commissioner for their consideration.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Carew, and Schonell. Associate:
Dated: 7 August 2024
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