Gupta & Gupta (No 2)
[2018] FamCAFC 77
•19 April 2018
FAMILY COURT OF AUSTRALIA
| GUPTA & GUPTA (NO. 2) | [2018] FamCAFC 77 |
| FAMILY LAW – APPEAL – PARENTING – Findings of fact – Where appeal proceeds in absence of appellant – Whether primary judge made error in findings of fact – Whether the primary judge erred in failing to admit certain affidavit evidence – Whether the primary judge erred in the conduct of the case – No error – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to dispense with the requirement to provide the transcript – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where appellant wholly unsuccessful – Whether the appellant would suffer financial hardship – Application for costs of the ICL granted. |
| Family Law Act 1975 (Cth) ss 61DA, 68C, 68B, 69ZN, 69ZX, 94AAA, 102QB, 117 Family Law Rules 2004 (Cth) r 22.30 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Gupta & Gupta [2018] FamCAFC 71 House v The King (1936) 55 CLR 499; [1936] HCA 40 Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22 |
| APPELLANT: | Mr Gupta |
| RESPONDENT: | Ms Gupta |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | PAC | 5828 | of | 2008 |
| APPEAL NUMBER: | EA | 95 | of | 2017 |
| DATE DELIVERED: | 19 April 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Pascoe CJ, Ryan & Aldridge JJ |
| HEARING DATE: | 12 April 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 1843 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Reynolds |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Order made 12 April 2018
The appeal be dismissed.
Orders made 19 April 2018
The application in an appeal filed 2 February 2018 be dismissed.
The appellant pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,466.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gupta & Gupta (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 95 of 2017
File Number: PAC 5828 of 2008
| Mr Gupta |
Appellant
And
| Ms Gupta |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 6 September 2017, Mr Gupta (“the father”) appeals against two sets of orders made by Judge Hughes on 11 August 2017. Ms Gupta (“the mother”) resists the appeal.
The first set of orders is final parenting orders concerning the parties’ children: J, born in 2005 and S, born in 2009 (“the parenting orders”). The second set of orders dismissed a contravention application made by the father filed 20 June 2017. As part of these orders the primary judge also made an order pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) that the father be restrained from commencing any further family law proceedings involving the mother or the children without obtaining leave of the court (Order 2) (“ the vexatious proceedings order”).
The father appeals against Orders 2, 4, 7, 8, 9 and 10 of the parenting orders and the vexatious proceedings order. He seeks that the orders be set aside and the matter be remitted to the Federal Circuit Court of Australia for a re-hearing. The father also sought that we make various interim parenting orders pending any re-hearing, the effect of which would be to establish supervised and then unsupervised time between him and the children.
Her Honour made orders that the mother have sole parental responsibility for the children (Order 2), the children live with her (Order 3) and spend no time with the father (Order 4). The mother was permitted to apply for passports for the children and to arrange international travel without the father’s consent (Orders 8 and 9). The father was given restricted permission to communicate with the children by exchange of letters, cards, gifts and electronic communication (Order 5). An order pursuant to s 68C of the Act was made empowering the police to arrest the father without a warrant in the event of a breach of a restraining order made pursuant to s 68B of the Act (Orders 6 and 7). Order 10, also under appeal, ordered that the father make a contribution to the costs of the Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests.
As a consequence of findings that there had been family violence (perpetrated by the father against the mother and the elder child), the presumption of equal shared parental responsibility contained in s 61DA of the Act did not apply. In any event, because of the father’s hostile attitude towards the mother, her Honour was satisfied there was no reasonable prospect of sensible communication between the parties and thus it was in the children’s best interests for the mother to have sole parental responsibility. As to the children’s living arrangements, the children had always lived with the mother. It was uncontroversial that the parties separated when the mother was expecting their younger child and that upon separation the father left Australia. The primary judge was satisfied that, in so doing, the father walked away from his responsibilities to the children and left them in the capable care of the mother.
The primary judge found there to be no meaningful relationship between the children and their father and that since 2008 the father had only had face to face contact with the children on three occasions. Her Honour found that the father absented himself from the children’s lives (and Australia) from 2008 until 2015 and was, for many of those years, uncontactable. The children did not want to spend time with the father and the primary judge was satisfied that unsupervised time would expose them to an unacceptable risk of physical and psychological harm and that even supervised time involved some risk of psychological harm. The orders made were broadly in line with the mother’s application and supported by the ICL.
Like the mother, the ICL contended that there was no merit in the appeal and sought that it be dismissed.
Two days before the hearing of the appeal the father sent an email to the Appeal Registry seeking an adjournment on medical grounds. A day before the hearing, the father’s reasons for seeking an adjournment were expanded to include that he needed more time to prepare his appeal. Notwithstanding advice from the Appeal Registry that he was required to attend and make the application in person, or have someone with a right of appearance make it for him, when the appeal was called on for hearing there was no appearance by or on his behalf. He also declined, when given the opportunity, to appear by telephone. The father’s application for an adjournment was dismissed with ex tempore reasons delivered that morning (Gupta & Gupta [2018] FamCAFC 71). As the correspondence between the Appeal Registry and the father indicated, in the event that his application for an adjournment was refused the hearing of the appeal would proceed as listed. It did and at the conclusion of the hearing, an order was made dismissing the appeal, with reasons to be given at a later date. These are the reasons.
The Court is of the unanimous opinion that the appeal does not raise any question of general principle. The Court’s reasons in short form (s 94AAA(7) of the Act) follow.
Background
In order to understand the primary judge’s reasons it is helpful to outline some of the history of the matter.
Both parties were born in India. The father moved to Australia in 1998, and the parties were married in India in 2003. Once married the mother moved to Australia to live with the father. The parties and the children are all Australian citizens.
The parties separated in 2008 and the father left Australia to live overseas. In 2015 he returned to Australia and both parties now live in western Sydney.
As we have said, the parties have two children, J and S. S was born after the parties had separated and the father had left Australia.
Final parenting orders were made in favour of the mother and in the absence of the father on 18 November 2010. The orders provided that the mother have sole parental responsibility, that the children live with her and spend time with the father as agreed.
The parties divorced in 2012 and the mother remarried in India in April 2015.
The father attempted to remove the children from school in May 2015. He was unsuccessful. The children have not seen or spoken to him since.
Shortly afterwards, on 16 June 2015, the father commenced these proceedings.
On 7 August 2015, interim parenting orders were made in the Federal Circuit Court for the father to spend time with the children at a contact centre. The primary judge found that the children did not spend time as ordered as they resisted doing so and the convenor of the contact centre was not prepared to force them.
The Father’s Appeal
As outlined above, after the father’s application for an adjournment was dealt with the appeal commenced in the father’s absence. The ICL submitted that the appeal should be considered (and dismissed) on its merits and not merely on the basis of non-attendance under r 22.30 of the Family Law Rules 2004 (Cth). The point being that this would give finality to proceedings which have been ongoing since 2010 (in one form or another) and caused immeasurable distress to the mother and the children. The mother adopted the submissions of the ICL, and emphasised to us that she has been in court over 63 times (in Australia and abroad) as a result of litigation related to the father.
It is clear that it is in the best interests of the children, and indeed the mother, that the proceedings be brought to an end as expeditiously as possible. As such, we agreed to hear the appeal on its merits.
Application in an Appeal
By Application in an Appeal filed 2 February 2018, the father sought to dispense with the requirement to provide the trial transcript for the appeal due to impecuniosity. This application was opposed by the mother and the ICL on the basis that the grounds of appeal could not be properly understood or responded to without a transcript. The father was not there to press the application and the application will be dismissed in line with the dismissal of the appeal.
Grounds of Appeal
In his Notice of Appeal the husband listed eight grounds of appeal which contended that the primary judge made errors of fact and failed to take into consideration certain evidence of the father. The father’s Summary of Argument, filed on 7 March 2018, listed seven further grounds of appeal which also contend that the primary judge made errors of fact, and made further submissions not linked to either sets of grounds and which did nothing more than agitate issues de novo that were considered at the final hearing.
The father’s Notice of Appeal requested leave to file an amended application at a later stage. As such, we presume that it was the father’s intention to abandon the grounds of appeal listed on his Notice of Appeal and rely on the grounds outlined in his Summary of Argument. While the mother and ICL also presumed this to be the case, they each addressed both sets of grounds in an abundance of caution. We will adopt the same approach, while noting at the outset that a number of grounds are not properly constituted grounds of appeals and neither set of grounds reveal appealable error.
Broadly speaking, the father’s “grounds” purport three main errors of the primary judge, namely that:
·The primary judge made errors of fact;
·The primary judge failed to consider the father’s evidence; and
·Complaints about the primary judge’s conduct of the case.
Before we address the grounds of appeal, it must be noted that this is an appeal against an exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519). This is particularly brought into focus in respect of parenting orders which inevitably involve assessments as to the future (CDJ v VAJ (1998) 197 CLR 172 at 218).
The primary judge’s findings of fact (Grounds 2, 3, 5 and 6 of the Notice of Appeal and Grounds 2, 3, 4, 5 and 7 in the Summary of Argument)
The father contends that the primary judge made errors in her findings of fact, including in relation to an alleged incident of family violence by the step-father in 2015, the extent of the father’s withdrawal of money from the mortgage account and departure from Australia in 2008, and findings of family violence perpetrated by the father. He further contends that “most of the events do not correspond to the exact circumstances and some of the events have been mixed up with others, which projects a wrong image of the father”.
The ICL submitted that these findings were based on the evidence of the mother and that it was open to the primary judge to accept the mother’s evidence.
We agree. The primary judge’s reasons show she was cognisant of each party’s case. In making findings, she considered the evidence of each side and gave considered reasons for the conclusions reached by her. For example, the father contends that the primary judge failed to consider his evidence of family violence towards him by the mother and her husband (Ground 3 of the Notice of Appeal), and challenges the primary judge’s findings that he perpetrated extensive family violence on the basis that there was a lack of medical evidence or police reports (Ground 5 of the Notice of Appeal). However, after an extensive review of the evidence before her, the primary judge found that:
137. The mother’s evidence of violence is compelling and is corroborated by her husband, her father, her friend and neighbour, [Ms H] and her friend, [Mr L]. It is also corroborated to some extent by the paternal grandfather. The father alleged that the mother and her husband were violent to him but his evidence about that was not remotely persuasive.
As to the evidence of family violence perpetrated by the father, her Honour’s finding that the evidence of the mother was corroborated in the manner stated is correct. Further, her Honour’s decision to reject the evidence of the father as to violence allegedly perpetrated upon him as “not remotely persuasive” was readily available.
The father denies the findings in a number of paragraphs, stating that the events outlined at [49], [38] and [93] of the reasons “didn’t occur” (Grounds 2, 3 and 4 in the Summary of Argument). As the father provides no elaboration on these grounds, it is unclear upon what basis or what evidence he relies on to dispute these findings. Paragraph 38 notes the father’s absence at S’s birth and difficulties experienced by the mother obtaining the father’s signature on the birth certificate and [93] records the paternal grandfather’s concessions in cross-examination that the father had taken the mother’s and J’s passports on several occasions which prevented them from attending a family wedding and, on another occasion, returning to Australia. It is not evident what in these paragraphs the father is arguing did not occur and constitutes error. Lastly, [49] discusses a family wedding that the mother attended in India in 2013 but to which father was not invited. The primary judge considered the evidence of both parties as to why this occurred, and concluded that the father was unable to provide an explanation and finding the mother’s explanation plausible. Such a finding was open to her Honour.
That the primary judge preferred the evidence of the mother when making findings does not amount to appealable error; error does not flow merely because other findings or conclusions were available or may have been made by a different judge. As was explained in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”) at [43], citing Fox v Percy (2003) 214 CLR 118:
… [A] court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony” or they are “glaringly improbable” or “contrary to compelling inferences”
(Citations omitted)
The father failed to establish that the findings and conclusions of the primary judge were not open to her on the evidence in accordance with the approach required by Robinson Helicopter. There is no merit in these grounds.
The primary judge’s consideration of the father’s evidence (Ground 1 of the Notice of Appeal)
The father argues that the primary judge erred by failing to consider the father’s affidavits and statutory declarations filed in support of his character and credibility.
The ICL submitted that the affidavits would not have assisted the court as the deponents had not seen the children since 2009. In this respect the evidence was a limited and old snapshot of the family. When regard is had to s 69ZN(4) of the Act, which requires the court to actively direct, control and manage the conduct of the proceedings and subsections 69ZX(1) and (2) which deal with the court’s general duties and powers relating to evidence, it is clear that the approach adopted by the primary judge was one of orthodox and necessary trial management.
We agree with the ICL that it was open to the primary judge to reject this evidence in the circumstances of the case. There is no merit in this ground of appeal.
The primary judge’s conduct of the case (Ground 4 of the Notice of Appeal and Grounds 1 and 6 of the Summary of Argument)
The father complains that the primary judge did not grant leave to serve a subpoena, as we understand it, by Facebook, on a witness and that the father was not given sufficient time to cross-examine the mother.
In his Summary of Argument the father provides no further details about unfairness or error which may have flowed from these pre-trial decisions and how it is that any limitation placed on his cross-examination of the mother occasioned procedural unfairness or had a material effect on the outcome. We note that the trial was listed for two days but lasted five days. In addition to offering that latitude, under the heading “the trial”, the primary judge recounts numerous instances where the father sought to take steps that ‘were completely impractical in the context of an ongoing trial”. The point being that it is quite apparent that the father sought to take steps inconsistent with ordinary trial procedures. There is no evidence of any appealable error.
Conclusion and Costs
The father failed to establish that in reaching her decision the primary judge erred in the approach she adopted or in principle, that she failed to take into account any relevant factor, that she took into account any irrelevant factor, that she was mistaken as to the facts or that the result embodied in the orders was clearly wrong or unreasonable or plainly unjust.
The appeal was without merit and has been dismissed. As is customary, following the hearing we sought submissions in relation to costs in the appeal.
The mother informed us that, although she was self-represented on the day, she had sought legal advice in relation to the appeal and incurred $200 in legal costs. However, she ultimately did not press an application for costs. The ICL sought costs in the amount of $4,466. We proceed on the basis that the father would oppose an order for costs and claim impecuniosity.
The issue of costs of an appeal is governed by s 117(1) of the Act which provides that each party to a proceeding under the Act bear his or her own costs, unless the court is of the opinion that the circumstances justify the making of a costs order (s 117(2)). In determining what order (if any) should be made under s 117(2), the court must have regard to the relevant factors in s 117(2A).
Section 117(4)(b) of the Act further provides that a court must not make an order for costs in favour of an ICL against a party if the court is satisfied the party would suffer financial hardship if he or she would have to bear a proportion of the costs of the ICL.
The father, of course, was not present to respond to the ICL’s application; however the reasons of the primary judge record that he runs his own website development company and is the owner-driver of a taxi [3]. This is an income-producing asset and it would appear that the father, albeit with a degree of difficulty, is in the position to meet the costs of the ICL. It is appropriate that he do so and accordingly an order in the amount sought will be made.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 19 April 2018.
Associate:
Date: 19 April 2018
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