Hackworth and Abani
[2012] FamCAFC 172
•25 October 2012
FAMILY COURT OF AUSTRALIA
| HACKWORTH & ABANI | [2012] FamCAFC 172 |
| FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against orders of Federal Magistrate dismissing appellant’s application for variation of parenting orders made on 4 May 2011 ─ Where the material put before the learned Federal Magistrate could not, even if accepted, have resulted in a different outcome to that which his Honour reached ─ No basis for appellate intervention demonstrated ─ Appeal dismissed. |
| Family Law Act 1975 (Cth); Part VII |
| CDJ v VAJ (1998) 197 CLR 172 House v The King (1936) 55 CLR 499 Lindon v The Commonwealth(No 2) (1996) 136 ALR 251 Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Hackworth |
| RESPONDENT: | Ms Abani |
| FILE NUMBER: | PAC | 780 | of | 2011 |
| APPEAL NUMBER: | EA | 88 | of | 2012 |
| DATE DELIVERED: | 25 October 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 25 October 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 June 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 712 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Thomas |
| SOLICITOR FOR THE RESPONDENT: | Darryl Perkins Solicitor |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hackworth & Abani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 88 of 2012
File Number: PAC 780 of 2011
| Mr Hackworth |
Appellant
And
| Ms Abani |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
By Notice of Appeal filed on 5 July 2012 Mr Hackworth (“the appellant”), appealed against orders made by Federal Magistrate Neville on 19 June 2012 in parenting proceedings pursuant to Part VII of the Family Law 1975 (Cth) (“the Act”) between the appellant, and his former wife, Ms Abani (“the respondent”).
The orders of the learned Federal Magistrate provided that the application brought by the appellant for orders varying parenting orders made on 4 May 2011 be dismissed. From those orders the appellant has appealed, and in essence seeks in lieu of those orders that he have:
1.... equal opportunity in part time or full time of parenting to my daughters [X] and [Y] in weekends and Public Holidays to pick them up on Fridays and drop them off on Sundays. It is not necessary in these days or every weekend.
2.... access to see them and talk to them face to face using Skype as video telecommunication in other days I will provide the necessary sets for them. (Errors as in original)
The respondent has resisted the appeal, and sought to maintain the orders of the learned Federal Magistrate. The principles governing the appeal are not in doubt and ordinarily would not be referred to in any detail. It is however in the context of the present appeal, in which the appellant is unrepresented, hopefully instructive to refer in a little more detail than might otherwise be appropriate to the principles which govern the appeal such as that of the appellant. As is not in doubt the orders under appeal arose as the result of the exercise of the discretion by the learned Federal Magistrate. That exercise of discretion was to not interfere with or otherwise revisit the orders made on 4 May 2011.
The High Court in House v The King (1936) 55 CLR 499, clearly enunciated the principles which govern appeals such as the present appeal. The High Court has subsequently on numerous occasions reiterated those principles. On no occasion since 1936 has the High Court altered the basis upon which appellate intervention may be enlivened in relation to exercises of judicial discretion.
Amongst other places in the judgment of Kirby J in CDJ v VAJ (1998) 197 CLR 172, at paragraph 186, the principle was articulated. His Honour there said:
186.A number of general propositions may be stated:
1.Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified. (Footnotes omitted)
The appeal, as the authorities make clear, and as the Court has endeavoured to explain to the appellant, involves determining whether, by reference to the appellant’s contentions, it can be concluded that the decision of the learned Federal Magistrate was erroneous. That is to say, erroneous in the light of the evidence which was before his Honour. There is one potential exception to that statement in relation to further evidence. There is further evidence in this appeal to which the Court will, if necessary, refer. The appeal primarily involves this Court determining whether the submissions of the appellant have merit in the light of what was concluded by the learned Federal Magistrate, why his Honour concluded as he did, and whether, having regard to the evidence before him, the appellant can demonstrate that such conclusion was erroneous in law, or otherwise not reasonably open to the learned Federal Magistrate in any of the ways which the law recognises.
Those ways are essentially apart from errors of principle or “plainly wrong” as Kirby J explained in CDJ v VAJ (supra), decisions which are based upon material errors of fact, or, in relation to decisions which are not asserted to involve material errors of fact, either the failure to consider relevant factual circumstances, the consideration of irrelevant factual circumstances or the affording of excessive or inadequate weight to relevant facts and circumstances.
The judgment of the learned Federal Magistrate reveals the process of reasoning which led his Honour to conclude as he did on 19 June 2012. Brief reference to his Honour’s reasons is hopefully instructive. His Honour identified the application of the appellant which was to vary orders of 4 May 2011 which at the time of the application before the Federal Magistrates Court in June this year involved only two of the four children of the former relationship of the appellant and the respondent. Those two children, both female, were aged 14 years and almost 10 years of age.
The learned Federal Magistrate recited the orders of 4 May 2011, accurately there is no doubt. As his Honour recorded those orders provided that the father communicate with the children by way of letter only, with a letter to be sent to the children at a maximum of once every two weeks. The matter was concluded but the orders also recorded that the parties be “at liberty to file any further application in 9 months time without constraint” (par 1).
It is not in doubt that the application filed by the appellant almost exactly nine months after the orders of 4 May 2011 was, if not excited by that order, in accordance with it. The orders of 4 May 2011 also provided that the respondent would not “impede or prevent” the two children to whom they related from contacting the appellant if the children wished to do so.
The learned Federal Magistrate made the orders of 4 May 2011 in reliance upon a family consultant’s expert opinion report which was before the court in those parenting proceedings. His Honour referred to the procedural history of the matter, none of that history being relevant for present purposes. He then, under the heading “The Family Report of August 2010”, referred to the contents of the report of Ms L of 12 August 2010 which came into evidence before his Honour on 19 June 2012. The Court does not have a transcript of the proceedings on the day, and thus cannot know the circumstances in which the report was received in the proceedings on that day, much less whether those circumstances involved any matter which could conceivably enliven appellate intervention. As will be seen however for more abundant caution, and in a hopeful abundance of fairness to the appellant, the Court proposes to approach and determine his appeal on the basis that reliance upon the report in the proceedings on 19 June 2012 may have been either impermissible or unwise.
In so saying, the Court is not for one moment to be taken to be inferring, suggesting, or in any way raising the prospect that his Honour erred in receiving the report into evidence on 19 June 2012. The Court is simply, in seeking to err on the side of extreme caution, adopting that approach, as potentially, given the contents of the report as there are reproduced in his Honour’s reasons for judgment, the most advantageous course which could be taken from the appellant’s perspective in approaching and determining the appeal.
Under the heading “Submissions, Discussion and Resolution”, the learned Federal Magistrate recorded the affidavit material upon which the appellant moved in the lower court. That material, it is not in doubt, was extremely brief, and with respect to the appellant was probably always going to be so. Even if, which is less than entirely clear, the appellant had the written communication with the children, in the terms contemplated by the orders of 4 May 2011, it is difficult to see how the appellant could have adduced anything in the nature of admissible evidence of events subsequent to 4 May 2011 in the lower court.
As the transcript of the appeal would record, the Court has raised that issue with the appellant, and to some extent empathised with him in relation to that difficulty. The learned Federal Magistrate having earlier referred to the family report of August 2010 acknowledged that the report had been prepared “some significant time ago” (par 16). His Honour then proceeded to consider the legal issues which governed the application before him in the light of the evidence. His Honour referred, as commonly occurs, to the “principles set out in Rice and Asplund” (par 16). As a number of decisions of this Court in recent years subsequent to the amendments to Part VII of the Act in 2006 make clear, there is no principle in Rice and Asplund (1979) FLC 90-725. If there ever was, that “principle” has not survived the amendments in 2006. Whether that, in a case such as this, changes anything, remains to be seen.
The learned Federal Magistrate however referred, albeit expressly by reference to Rice and Asplund (supra), to the considerations which should influence the court in relation to an application such as that which the appellant brought before the court on 19 June 2012. His Honour referred to a number of more recent authorities, all of which post dated the 2006 amendments, and his Honour recorded, established that the court needed to be:
20.... satisfied that there is some changed circumstances or some new factor arising, or some factor that was not disclosed at the previous hearing that would properly warrant a variation of the earlier orders. Further, the Court must assess whether the variation sought would benefit the children more than the disruption caused by further litigation. In my view, it is clear that the onus of properly establishing such change of circumstances, or other matters noted, falls on the party who seeks to vary the existing orders.
His Honour then recorded that he found that the appellant had:
22.... provided no evidence at all that would warrant the Court entertaining his Application. As understandable as it is for him to wish to spend time with his children, of itself, that desire does not warrant a sufficient, indeed any, change in circumstances to those that prevailed at the time of the Family Report in August 2010, or at the time when the May 2011 orders were made.
The learned Federal Magistrate accordingly declined to accede to the appellant’s application, and ordered its dismissal.
In the appeal the appellant has relied upon three documents. They are, for convenience, referred to as, case outlines which appear at pages 9, 10 and 11 of the appeal book, those parts of his affidavit which were read in the lower court which appear at pages 24 and 32 of the appeal book, and the summary of argument which the appellant filed and served in September 2012. As suggested to the appellant, during the course of his submissions, nothing which this Court has heard, has read in the record, or otherwise gleaned suggests that the appellant is other than bona fide in his desire to have a meaningful relationship with his children. As also explained to the appellant this Court as an intermediate Appeal Court is bound by the legal principles to which reference was made earlier in these reasons. Put simply, sympathy cannot override the law where the law indicates an outcome which on application of law will produce.
In his case outlines the appellant raised a range of factors going back quite some years, indeed going back to the time that the parties separated. A lot of the material in the case outlines at pages 9, 10 and 11 of the appeal book relates to complaints about the conduct of the respondent, decisions of the legal aid office, matters of history, and complaints about conduct of the respondent’s solicitors and/or the Independent Children’s Lawyer. With respect to the appellant, nothing asserted by him in the case outlines at 9, 10 and 11 of the appeal book could begin to demonstrate the prospect of appealable error. To read those documents is to understand why that is so. This is not said critically of the appellant, nor is it intended in any way that so doing to be insensitive to a litigant, who the Court accepts, has a genuine desire to have a relationship with his children, but as a matter of law nothing in those three pages begins to establish a foundation for appellate intervention.
Turning then to the evidence which the appellant presented in the lower court, as the Court endeavoured to explain to the appellant, logically an appeal against the decision of a subordinate court involves this Court in the application of settled principle determining whether on the evidence before that court the result reached was not reasonably open. The evidence of the appellant before the learned Federal Magistrate asserted:
1.I am not allowed to spend time or have parenting with my daughters [X] and [Y] and since 15/09/2008. In the meanwhile, I pay child support to the mother since seperation and sent a gift to [X] in 10/2008, once [X] received it (after seperation), the mother thrown it away in the lake.
2.As a father, I miss my children and worry about them, I don’t know any thing about them without my choice.
3.The mother has good barristers from the Legal Aid, ACT, while I have been refused. I am not working because of my sickness and I can not pay for private solicitor. For this reason, the mother situation is much stronger than my situation in courts. (Errors as in original)
Later in the document, at appeal book page 32, having set out the interim orders which he sought, which are in essence that the appellant have the children on the weekends and holidays, to pick them up from Canberra on Friday evenings, drop them off on Monday mornings early, and that the respondent contribute $50 towards petrol expenses on each of those occasions, the appellant set out in his affidavit that he was 46 years of age at the date of swearing the affidavit, that he had not seen the children since separation on 15 September 2008 because of:
2.... Domestic Violence Order the mother initiated since separation and for 2 years until December 2010. She initiated another application and approved for other 2 years. (Errors as in original)
The appellant proceeded to allege that he had not visited the children:
3.... into their school as the other party said. But I saw them, by coincidence, in [a] School in Canberra in November 2009, and this school was not mentioned in the order. [X] came to me with her friend [R], and I kissed her and hugged her and talked to her for a few minutes only. I was arrested next day according to the mother request, and spent 2 days with Police custody, and then 8 months in court until I have No Conviction order. (Errors as in original)
The appellant then alleged:
4.The children are children cannot decide to see their father or not, or communicate with him, and their view made by their mother, not by themselves.
5.I sent letters, but because the mother interferes in my letters, I cannot send any more letters. I seek to have the same opportunity the same other parent has. (Errors as in original)
The foregoing was the evidence which was before the learned Federal Magistrate, and it is essentially by reference to that evidence that the fate of the present appeal falls to be determined.
In the third document, the summaries of arguments filed by the appellant in September of this year, albeit somewhat differently worded, the same issues were agitated as were variously raised in the two documents to which reference has previously been made. Commencing however at about paragraph 5 of the summaries of the arguments, and following for over to and including paragraph 8 are allegations of events of considerable antiquity. There follows a series of allegations about the mother, some of antiquity, others more recent. As with the first document, the case outlines at pages 9, 10 and 11, the complaints raised by the appellant do not assume the air of grounds of appeal much less submissions which could advance any recognised challenge to the decision of the learned Federal Magistrate.
As is not uncommon when appellants appear in person in this Court, notwithstanding the way in which their complaints are articulated, and the absence of apparent merit in them according to law, the Court frequently does, and in this case has examined for itself the reasons for judgment of the learned Federal Magistrate in the light of the evidence before his Honour in order to determine whether, albeit not articulated in such terms, any complaint in relation to his Honour’s decision agitated by the appellant may have or has merit.
As is not in doubt the starting point for the proceedings before the learned Federal Magistrate on 19 June 2012 was the orders or 4 May 2011. Those orders were not challenged on appeal. The significance of that reality is twofold. The first is readily apparent. Having not been challenged on appeal those orders remain undisturbed. As such the starting point in June 2012 was those orders, and a consideration of what evidence capable of acceptance of events subsequent to that date, could possibly result in those orders being varied.
The second point is that to the extent that the appellant complains, as clearly he does, about what he asserts to have been inadequacies or deficiencies in the August 2010 family report, the reality is that, subject to what has yet to be said, that should have been challenged in the context of an appeal against the decision of 4 May 2011 given that the decision at that time was significantly influenced by the contents of that report. That is not in doubt having regard to the reasons for judgment of the learned Federal Magistrate of 19 June 2012. As such, save to the extent that the appellant may be able to argue that in June 2012 the learned Federal Magistrate erroneously relied upon, or gave excessive weight to such reliance, as he permissibly could have upon the August 2010 report, complaints about the contents of that report cannot advance the present appeal.
As foreshadowed, the Court proposes considering the learned Federal Magistrate’s reasons for judgment on the basis that reliance upon the August 2010 report was impermissible, or if permissible, unwise. The Court reiterates that that approach does not in any way imply that his Honour’s reliance upon the report was erroneous or unwise. It is conceivable, were the transcript before the Court, and probable, that before receiving the report in evidence his Honour would have raised with all parties that possibility, heard submissions about it, and dealt with it in a manner which amply satisfied the requirements of procedural fairness and natural justice.
Excising, for the purpose of considering the reasons for judgment of 19 June 2012, the report which was clearly adverse to the appellant, the question becomes what else was there before the learned Federal Magistrate which could or should have disinclined his Honour to dismiss the appellant’s application. The short answer to that is what is found at pages 24 and 32 of the appeal book which the Court has earlier read on to the record. That is to say, the evidence which the appellant himself placed before the learned Federal Magistrate.
As earlier suggested, notwithstanding, that the appellant was undoubtedly in a very difficult, if not an impossible position, in adducing any admissible evidence of matters which could or should have led to his application being entertained in greater detail, subsequently, the learned Federal Magistrate was entitled to and, indeed, obliged to, as is this Court, proceed on the basis of the evidence which was before him. In short, that evidence, with great respect to the appellant, did not begin to demonstrate anything which if accepted could conceivably have resulted in a different outcome to the proceedings than that which his Honour reached.
That is, perhaps, unfair in some ways given that the appellant, as he clearly recognises, was in no position to adduce any admissible evidence which might have been probative of the sorts of things which he needed to establish, but that cannot, in effect, overcome the hurdle which the dearth of evidence created. The learned Federal Magistrate did not approach the matter, nor, with respect, was his Honour obliged to, on the basis of a summary dismissal application, but this Court has regard to the tests which govern such applications, in effect, by way of cross-check or for more abundant caution.
In Lindon v The Commonwealth(No 2) (1996) 136 ALR 251, Kirby J explained in terms which are not controversial, the basis upon which an application for summary dismissal should be determined. In his reasons Kirby J referred to the serious step which denying a litigant his or her day in court without a full hearing on the merits constitutes. His Honour reiterated the principles which clearly establish that summary dismissal is not a step lightly taken by courts. It is a serious matter to deprive a litigant of his or her entitlement to a hearing of a claim within the jurisdictional competence of a court on its merit.
Kirby J, not surprisingly, expressed it more eloquently in Lindon v The Commonwealth (supra) than the Court now will, but in essence, and for practical purposes putting the test at its most favourable to a party such as the present appellant, the test can be taken to be whether the application is foredoomed to failure or demonstrably hopeless, that is, to say without the prospect of success. With great respect to the appellant, the material put before the learned Federal Magistrate could not, even if accepted, have resulted in a different outcome to that which his Honour reached.
All his Honour did in reality in those circumstances was save the parties the expense, the effort of an exercise in futility with a final hearing, and the appellant from having hopes falsely raised, only to be dashed at such final hearing. Whatever test one applies to the reasons for judgment of the learned Federal Magistrate the conclusion the Court must reach is the same. There is simply no basis for appellate interference with those orders. Had the learned Federal Magistrate reached his decision solely in reliance upon the contents of the August 2010 report different considerations would have arisen.
If the learned Federal Magistrate’s reliance upon the August 2010 report on 19 June 2012 was erroneous, and the Court has not found that it was, but if it was, that would change nothing because there remained a sufficient basis by reference to the evidence which was not presented by the appellant for dismissing his application. The further evidence to the extent that it is evidence sought to be relied upon by the appellant changes nothing. It does not demonstrate as the majority explained in CDJ v VAJ (supra) at paragraph 109, that acceptance of any of that evidence would demonstrate that the decision under challenge was erroneous.
No basis for appellate intervention having been demonstrated, and the further evidence failing to demonstrate appealable error, regrettably for the appellant his appeal can have but one fate, and that fate is that it must be, and is dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 25 October 2012.
Associate:
Date: 31.10.2012
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