HADESTY & BEAVEN
[2017] FamCAFC 98
•26 May 2017
FAMILY COURT OF AUSTRALIA
| HADESTY & BEAVEN | [2017] FamCAFC 98 |
| FAMILY COURT – APPEAL – CHILDREN – Where most of the appellant’s grounds of appeal are irrelevant, without substance or any basis in fact or law, or comprise a combination of general assertions and evidence – Where no question of general principle is raised and the reasons will be given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Where no appealable error by the trial judge is established – Where the appeal has no merit – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent and the Independent Children’s Lawyer seek orders for costs – Where the appellant opposes any such orders on the basis of his financial circumstances – Where there are circumstances which justify orders for costs being made – Where the appellant has been wholly unsuccessful in the appeal – Where it is readily apparent that there was never a reasonable chance of the appeal succeeding – Costs ordered in favour of the respondent and the Independent Children’s Lawyer. |
| |||
| APPELLANT: | Mr Hadesty | ||
| RESPONDENT: | Ms Beaven |
| INDEPENDENT CHILDREN’S LAWYER | Ms R Reed |
| FILE NUMBER: | ADC | 3579 | of | 2013 |
| APPEAL NUMBER: | SOA | 13 | of | 2016 |
| DATE DELIVERED: | 26 May 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
JUDGMENT OF: | Strickland J |
| HEARING DATE: | 1 December 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 February 2016 |
| LOWER COURT MNC: | [2016] FCCA 171 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Hemsley |
| SOLICITORS FOR THE RESPONDENT: | SE Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs West |
| SOLICITORS FOR THE INDEPENDENT | Legal Services Commission of South Australia |
Orders
The appeal be dismissed.
The father pay the costs of the mother and of the Independent Children’s Lawyer of and incidental to the appeal, such costs to be assessed on a party/party basis in default of agreement as to the same.
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 Hadesty & Beaven 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 13 of 2016
File Number: ADC 3579 of 2013
| Mr Hadesty |
Appellant
And
| Ms Beaven |
Respondent
And
| Ms R Reed |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
On 2 September 2016, Mr Hadesty (“the father”) filed an Amended Notice of Appeal against parenting orders made by Judge Kelly on 5 February 2016 in relation to A (“the child”) born in 2008. Ms Beaven (“the mother”) and the Independent Children’s Lawyer (“ICL”) oppose the appeal.
In summary, her Honour ordered that the mother have sole parental responsibility for the child, the child live with her, and the child spend time with the father, with that time increasing to every alternate weekend from 10:00am Saturday until 5:00pm Sunday by August 2016. Importantly, her Honour also restrained both parties from:
(7) …:
(a)consuming any illegal substances whilst [the child] is in their care and for 24 hours prior to her coming into their care;
(b)allowing [the child] to be exposed to any person using illegal drugs or under the influence of illegal drugs;
(c)abusing, criticising or denigrating the other parent or any member of their extended family to [the child] or in her presence;
(d)allowing any other person to abuse, criticise or denigrate the other parent or any member of their extended family to [the child] or in her presence;
(e)intimidating, threatening or harassing the other parent or any member of their extended family; and
(f)discussing any issues raised in these proceedings with or in [the child’s] presence and from allowing any other person to do so.
Further, each party was required to participate in random urine drug screening for a period of six months, and in the event that the father failed to comply, or the test was positive (for other than marijuana), then the child’s time with the father is suspended until further order.
Finally, if the father’s tests are negative (for other than marijuana), the parties are to attend family dispute resolution in February 2017 “to discuss additional weekends and school holiday time between the child and the father”.
The father appeals all orders, and if successful, sought a number of orders including that there be “shared parental responsibility”, the child live with the parties on a week about basis with handovers each Wednesday, and for “[s]chool holidays to be shared”.
Relevant background
The following history is taken from the trial judge’s reasons for judgment.
The parties commenced their relationship in 2001 when the father was aged approximately 32 years, and the mother was aged approximately 27 years. It was an on again/off again relationship, with the mother returning to live with her parents when the relationship deteriorated, which was often.
Both parties conceded that their relationship was marred by substance abuse, aggression and violence.
The mother discovered that she was pregnant in mid-2007, and she was able to cease using illegal drugs during her pregnancy.
After the child’s birth the parties resumed their on again/off again relationship.
The parties finally separated on 13 May 2013, following an incident where the father assaulted the mother. They entered into an informal parenting arrangement at about that time allowing for the child to spend overnight time with the father.
On 25 June 2013, the mother obtained an interim intervention order naming her and the child as protected persons. The order allowed the father to maintain telephone contact with the child.
During 2013 the mother reported the father for breaching the intervention order on numerous occasions by threatening and harassing her.
On 26 September 2013, the father filed an Initiating Application seeking a range of parenting orders, including orders for equal shared parental responsibility, that the child live with him, and spend time with the mother.
The mother filed her response on 31 October 2013, and on 5 November 2013, interim orders were made providing for the child to live with the mother, the child to spend time with the father on a supervised basis, restraining the father from consuming drugs for 24 hours before and during any time with the child, and for both parties to undergo monthly drug screening tests.
Thereafter, the father refused the requests for drug screen tests and continued to send abusive and threatening messages to the mother.
On 9 April 2014, as a result of the abusive behaviour of the father, including on one occasion in the courtroom itself, the court ordered ongoing supervised time and a further regime of drug screen testing. However, again, the father failed to comply with the requests for that drug screen testing.
On 3 June 2014, the court ordered a s 62G Family Report which was released on 26 August 2014. The report writer commented “that the father had limited insight into the impact of his substance abuse or his violent and aggressive behaviour. She noted that he struggled to take responsibility for his actions, and had limited insight into the inappropriate nature of his behaviour” (at [15]).
On 14 August 2014, the father tested positive for methamphetamines.
On 11 September 2014, the father failed to attend court, and the child’s time with the father was suspended.
On 23 October 2014, the father attended court and the suspended time was reinstated. The court ordered that the father undergo counselling with Drug and Alcohol Services South Australia, and that he participate in domestic violence counselling, as had been recommended in the Family Report.
Thereafter the reports from the Children’s Contact Centre indicated that the supervised time was proceeding well; the child had a positive relationship with the father, and they appeared to enjoy their time together.
On 12 February 2015, the court ordered that the child spend approximately four hours each alternate weekend with the father, to be supervised by the paternal grandparents.
The trial commenced before her Honour in June 2015, and concluded on 30 June 2015.
At trial the father sought that there be equal shared parental responsibility for the child, that the child live with each party on a week about basis, and there be school holiday time. The mother sought that she have sole parental responsibility for the child, that she live with her and spend time with the father, increasing over time to each alternate weekend 10:00am Saturday until 5:00pm Sunday, and that the father undertake ongoing random drug screen testing for 12 months. Both parties sought a range of other specific issues orders.
The trial judge’s reasons for judgment
It is important to set out in some detail her Honour’s reasons given the broad and general assertions made by the father in this appeal.
In assessing the best interests of the child, her Honour correctly addressed the considerations in s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).
As to s 60CC(2)(a), her Honour found that the child enjoys a meaningful relationship with each of the parents, but her Honour found that “the crux of the dispute before the court” arose in the context of s 60CC(2)(b). In this regard her Honour concluded as follows:
54.I conclude that the mother’s description of the parties’ past relationship is accurate. While she also behaved aggressively at times, I am satisfied that the father was primarily responsible for the violent episodes within their relationship. I am satisfied that the mother was frightened of the father’s behaviour but was also emotionally dependent upon him, notwithstanding the ongoing support she received from her parents.
55.These findings are significant in terms of the parties’ capacity to maintain any co-parenting relationship into the future. Taking into account all of the evidence before the Court, I find as follows:
•The father was physically, verbally and emotionally violent towards the mother during the relationship.
•At times the father’s violence was an escalation of existing fights or arguments between the parties, during which both parties may have behaved abusively or aggressively.
•Both parties failed to appreciate the impact that their fights and arguments had upon [the child] at the time, but the mother has since developed a greater insight into the impact their behaviour would have had upon their daughter.
•The father continues to show limited insight into the impact that his behaviour would have had upon [the child] during the relationship.
56.I do not consider that [the child] is at risk of physical abuse from her father. However, there is a risk that she could be exposed to her father’s aggressive or violent behaviour towards her mother or towards others in his life. This is a significant factor in my decision.
Turning to the additional considerations in s 60CC(3), her Honour said as follows:
a)Because of the child’s young age only limited weight should be attached to her views. Nevertheless, she “enjoys spending time with her father and appears able to separate her mother’s concerns from her own experience of time spent with her father” (at [61]).
b)The child “enjoys a positive and loving relationship with her mother” and has been able to “re-establish a positive relationship with her father, notwithstanding her exposure to conflict and family violence during her parents’ relationship” (at [62]).
c)As for the maternal grandparents, “[s]he was understandably sad when talking about the recent death of her grandmother and continues to have a secure and loving relationship with her maternal grandfather” (at [63]). The father alleged that the maternal grandfather has a “serious drug use history of his own”, but the grandfather denied that allegation and given the father did not cross-examine him, her Honour accepted his denial and rejected the father’s allegations (at [64]).
d)In relation to the paternal grandparents, her Honour was satisfied that the child enjoys “a positive and loving relationship with [them]” (at [68]).
e)The impact of the parents’ substance abuse was a principal concern of her Honour and it is helpful to set out her Honour’s findings in full in relation to this issue:
70.Both parties continued to use illegal drugs after [the child] was born and at times their parenting capacity must have been compromised by their drug addiction. To their credit, both the mother and father made efforts to reduce their drug use after [the child] was born, but with limited success. The father struggled to draw any correlation, or identify any pattern of addictive behaviour with respect to his past alcohol use (which led to numerous convictions for drink driving) and his subsequent amphetamine addiction.
71.The mother initially claimed that her drug use did not affect her parenting. Ms [Y] [the family report writer] challenged the mother on this issue, noting that social science research and Ms [Y’s] own clinical experience, indicated that children of substance abusing parents often receive care that is physically and emotionally compromised due to the pre-occupying and all pervasive nature of substance addiction.
72.By the time of the second family assessment report, the mother was able to acknowledge that her past drug abuse had a negative impact upon her parenting. Ms [Y] noted the mother “reported that her insight into her previous substance abuse had grown in recent times, in particular her acknowledgment of how it affected her relationship with [the child]”.
73.The father did not demonstrate the same level of insight into his drug abuse. During his initial interview the father described his drug use as ‘recreational only’, but Ms [Y] was concerned that he was not willing to give full details, or reflect honestly upon his past drug use. In the course of the trial the father was able to look back more openly in relation to his past drug use. He conceded that his drug addiction had been a significant problem both in his relationship with the mother and his parenting relationship with [the child].
74.Ms [Y] reported positively on the mother’s emotional development during the twelve months between their two interviews. She noted the mother had presented clean urine tests and also showed sufficient insight into her past drug abuse problems to seek counselling support, especially during the distress surrounding her mother’s death.
75.The mother’s commitment to ongoing counselling is a very positive sign. All of the indicators in the mother’s life lead to the conclusion that she appears to have successfully resolved her past substance abuse issues.
76.The Court cannot be as confident in relation to the father, given that he has consistently understated the extent of his past drug use and the impact it has had on his life. [The father] repeatedly denied that his amphetamine addiction would have affected his capacity to parent [the child]. He chose instead to focus blame on the mother, accusing her of restricting his relationship with [the child], by limiting their time spent together both prior to separation, by virtue of the mother’s frequent visits to her parents’ home, and after separation, by virtue of her refusal to allow [the child] to spend time with him.
77.The Court’s concerns are heightened by the father’s failure to properly comply with the drug testing regime. The father’s positive drug test in 2014 was also very concerning, but I note that his more recent drug tests across 2015 have been clean, which is reassuring.
(Footnotes omitted)
f)Her Honour recognised that the father wants to play “a more substantial role in the child’s life” (at [79]), that he has come to “reflect more openly about the impact his behaviour has upon others, including the mother and [the child] …” (at [80]), and that he has endeavoured “to improve his interpersonal skills by attending counselling and parenting courses” (at [81]), but the family report writer and one of the counsellors who saw the father felt that even after these efforts, the father still had limited insight into the impact his behaviour may have had on the child, and demonstrated “significant inflexibility of thought” reflecting the mother’s concern that the father remains unable to control his hostility towards her, and the child will be “exposed to this behaviour which will undermine or destabilise the child’s relationship with her” (at [82]).
g)Her Honour noted that the child has not spent “any significant time in her father’s sole care since shortly after the parents separated” (at [86]), and indeed there had been no overnight time for two years.
h)The child still experiences some separation anxiety when moving from her mother.
In relation to parental responsibility, her Honour found that an order for equal shared parental responsibility is not in the child’s best interests, primarily because the parties are unable to communicate effectively with each other, and the mother would find it too stressful to engage with the father. Instead, her Honour concluded that the mother should exercise sole parental responsibility for the child. In doing so her Honour said this:
97.… I am satisfied that she will exercise her responsibilities with a proper focus on [the child’s] welfare and promote [the child’s] best interests across her childhood. The father conceded that the mother is a caring and responsible parent who will always try to do her best for their daughter. The mother has demonstrated her capacity to support [the child’s] relationship with her father, despite her own misgivings. This outcome will be disappointing for the father, but my obligation is to make orders that are in [the child’s] best interests, not orders that meet the needs of either parent.
In summary, her Honour found as follows in relation to the child’s parenting arrangements:
a)The child is settled in the mother’s care.
b)The mother has resolved her past substance abuse issues and demonstrates considerable insight into the child’s needs and her own responsibilities as the child’s parent.
c)The issue in relation to the father is not his bond with the child but the long-standing and chronic conflict within the co-parenting relationship.
d)The father remains unable to truly acknowledge the impact that his past threatening and abusive behaviour has had upon the mother.
e)The mother’s evidence of the father’s past violence and drug use should be accepted over the father’s claim that she has exaggerated the same.
f)It is not open on the evidence to put in place an equal time parenting regime as sought by the father.
g)The father’s day to day parenting capacity and his ability to maintain a drug free lifestyle remain untested over long periods of time.
h)The child should remain living in her mother’s primary care.
i)The child’s time with the father should now increase from four hours each alternate weekend to full days from 10:00am to 5:00pm for the next school term before extending time to include an overnight stay.
j)It is appropriate for handovers to continue to take place at a contact centre or a police station if the contact centre is not available.
k)It is also appropriate to continue previous injunctive orders in relation to substance abuse and the parties’ communication with each other and with the child.
l)As proposed by the ICL there should be ongoing drug screen testing for six months.
The appeal
As will be seen, this appeal will be dismissed. Given that there is no question of general principle that is raised, the reasons therefore will be in short form (s 94(2A)).
At both the trial and the appeal the father appeared without legal representation. As a result, it proved a tortuous process to set up the hearing of the appeal, and to have the father prepare his case.
In his initial Notice of Appeal filed on 3 March 2016, the father’s “grounds of appeal” comprised 14 pages of closely typed narrative identifying 12 topics of complaint. Unfortunately, it was impossible to discern from that narrative the precise alleged appealable errors by the trial judge (if any). Eventually, after two adjourned hearings, the father filed an Amended Notice of Appeal on 2 September 2016. However, that proved to be little better in identifying appealable errors by the trial judge. Instead of a lengthy narrative this time, over 10 closely typed pages, the father set out 66 “grounds of appeal”. I don’t propose to repeat them all here because that would not be helpful; most are irrelevant, without substance or any basis in fact or law, or comprise a combination of general assertions and evidence, and a few examples will be instructive:
GROUNDS OF APPEAL
…
Ground 2(a) – Her Honour displayed Apprehended bias in final hearing in that she coerced an apology from the applicant to respondent whilst applicant was in witness box and failed to adduce same from respondent to applicant despite both parties alleging the other was a perpetrator of domestic violence against themselves.
…
Ground 4 – Her Honour erred by providing reasons for judgment that are inadequately explained and hypocritical in wording and difficult to ascertain her true judgment or methodology used in determining them
Ground 4(a) – Her Honour erred in relying on material not tendered in the proceedings. Where the material was not “common knowledge” under s 144 of the Evidence Act 1995 (Cth). Where the parties’ attention was not drawn to the material denying applicant procedural fairness to argue submissions in regard to this “social science literature”.
…
Ground 12 – Her Honour erred in failing to subject evidence to proper tests/standards as per legal principals as explained in Briginshaw.
…
Ground 14(a) – Her Honour erred in applying wrong and constricted principal to applicant’s claims of being subjected to ongoing family violence throughout relationship supposedly relied upon solely from applicant’s demeanour in witness box from which Her Honour concluded “the father was not frightened by the mother’s behaviour”. Despite reasons being absent to logical methodology used to make such a determination, Her Honour failed to appreciate the applicant’s fear attached to family violence episodes was rife in regards to being fearful of losing his role as a father, his emotional well being, family home and employment.
…
Ground 16(e) – Her Honour erred in her appraisal of parties regarding credibility by failing to realistically take into account the relevant matters of respondent throughout proceedings and final hearing relied on differing and conflicting versions of supposed isolated events that were designed to intentionally gain herself a sympathetic court.
…
Ground 20 – Her Honour erred and acted on wrong principals in ordering the mother have sole parental responsibility for the child.
Ground 21 – Her Honour erred in making observations as to both parties credibility as they were each separately in the witness box and failed to alert applicant as to the weight she would be affording this aspect of evidence thus denying procedural fairness to applicant whom was unrepresented at final hearing.
…
Ground 25 – Her Honour erred in making numerous findings of fact that are clearly wrong. These primarily regarded elements relied on to make adverse findings against applicant regarding supposed anger, drug addiction, state of mind and intentions and infected Her Honours orders in totality.
…
Ground 27 – Her Honour erred in making a finding of fact that “the father behaved in ways that were physically, verbally and emotionally abusive towards the mother and that she was frightened and intimidated by his behaviour. This finding is not open to be determined by the court due to wealth of relevant, documentary evidence that Her Honour has mistaken the facts of or applied a wrong principal to.
…
Ground 30 – Her Honour erred in making a finding of fact “The mother says she felt frightened of the father and unable to refuse the father.”
…
Ground 32 – Her Honour erred in making a finding of fact “He concedes that he reacted angrily by threatening and harassing the mother.”
…
Ground 35 – Her Honour erred in making a finding of fact “The father became extremely angry and abusive in the course of the hearing and left the courtroom prior to orders being pronounced.”
…
Ground 37 – Her Honour erred in making a finding of fact “The father knew full well that [the child] and the mother were living there and it should have come as no surprise to him that [the child] was present.” This finding is not open to be determined by the court due to wealth of relevant, documentary evidence that Her Honour has mistaken the facts of or applied a wrong principal to.
…
Ground 41 – Her Honour erred in making a finding of fact regarding respondent. “She gave her evidence in a straight forward manner, without seeking to gloss over her past shortcomings.” This finding is not open to be determined by the court due to wealth of relevant, documentary evidence that Her Honour has mistaken the facts of or applied a wrong principal to.
…
Ground 43 – Her Honour erred in making a finding of fact “The police records indicate a long history of abusive behaviour by the between the parties.
…
Ground 47 – Her Honour erred in making a finding of fact “The father continues to show limited insight into the impact that his behaviour would have had upon [the child] during the relationship.” This finding is not open to be determined by the court due to wealth of relevant, documentary evidence that Her Honour has mistaken the facts of or applied a wrong principal to.
…
Ground 49 – Her Honour erred in making a finding of fact “The father chose not to cross examine the maternal Grandfather”.
…
Ground 51 – Her Honour erred in making a finding of fact “He conceded that his drug addiction had been a significant problem both in his relationship with the mother and his parenting relationship with [the child].”
…
Ground 54 – Her Honour erred in making a finding of fact regarding the respondent “acknowledged her own past failings as a parent.”
…
Ground 56 – Her Honour erred in making a finding of fact “I am satisfied that she will exercise her responsibilities with a proper focus on [the child’s] welfare and promote [the child’s] best interests across her childhood.” This finding is not open to be determined by the court due to wealth of relevant, documentary evidence that Her Honour has mistaken the facts of or applied a wrong principal to.
…
Ground 58 – Her Honour erred in making a finding of fact “The mother appears to have addressed her past substance abuse issues and was able to demonstrate considerable insight into [the child’s] needs and her own responsibilities as [the child’s] parent.”
…
Ground 61 – Her Honour erred in making a finding of fact “His ability to maintain a drug free lifestyle also remains untested over the long term.”
…
Ground 64 – Her Honour erred in making a finding of fact “The ICL proposes ongoing drug screen testing for six months and I agree that is appropriate”. This fails to account for the fact that ICL made submission 8.5 months prior and drug screen testing requests had remained a live action for ICL to implement during that time awaiting release of reasons for judgment.
…
(Errors and omissions as per original)
As can be seen, there was a need to identify a basis for many of these grounds of appeal by reference to the transcript and/or the record generally, but the father failed to do that. He filed a “summary of argument” on 14 November 2016, and a further “summary of argument” on 1 December 2016, and he also provided to the court extracts of the transcript of the proceedings. Unfortunately, neither summary of argument provided a basis to better understand the “grounds of appeal”, and none of the transcript extracts were referred to. Indeed, neither summary mentioned any of “the grounds of appeal” apart from referring in general terms to the alleged “errors of fact” (first summary of argument), the alleged “denial of natural justice”, and the alleged “inadequacy of reasons” (second summary of argument). Rather, the summaries comprised a raft of general assertions complaining about the mother’s lawyers and the ICL, and how the father was sidelined by the trial judge. However, none of that is apparent from the record, or the extracts of the transcript.
Given that background, at the hearing of the appeal I attempted to overcome the defects in the presentation of the father’s case by having him summarise his complaints about the orders made by the trial judge. However, even that did not prove successful, and the exercise degenerated into a rambling discourse by the father.
I hasten to add that these comments are not intended to be a criticism of the father. I accept that in the circumstances he has done the best he can, but without legal representation he has simply been unable to present his case such that there are competent grounds of appeal which identify appealable errors by the trial judge, together with a summary of argument that amplifies and explains those grounds of appeal by reference to the record, including the trial judge’s reasons for judgment, and the transcript of the hearing.
As can be seen the court has given the father ample opportunity to properly prepare his case, but unfortunately that has not been able to be achieved.
Thus, all this court can do is, in the knowledge of the general assertions raised by the father in relation to the orders made by her Honour, carefully consider her Honour’s findings as expressed in her reasons for judgment, and look to whether those findings were open on the evidence before her Honour as best as can be done from the record and the transcript that is available.
Having undertaken that exercise, this court is not persuaded that her Honour erred in the exercise of her discretion. Her Honour has not acted “upon a wrong principle”, allowed “extraneous or irrelevant matters to guide or affect [her]”, mistaken “the facts”, failed to “take into account some material consideration”, and nor is the outcome “unreasonable or plainly unjust” on the facts (House v The King (1936) 55 CLR 499 at 505).
Further, it has not been established that there was a denial of natural justice, that her Honour demonstrated apprehended bias, or that her Honour’s reasons were inadequate, those appearing to be specific complaints made by the father. And to attempt to put these complaints into how the father would express them, it is not apparent that the trial judge favoured the mother over the father, overlooked or ignored the evidence of the father, or failed to afford him every opportunity to present his case.
Moreover, in relation to the issue of bias, I am not persuaded on the basis of the extracts of the transcript provided by the father, that anything her Honour said or did during the course of the trial that is therein revealed, would cause a fair-minded lay observer to reasonably apprehend that the trial judge might not bring an impartial and unprejudiced mind to the resolution of the question her Honour was required to decide (Johnson v Johnson (2000) 201 CLR 488 at 492). Nor is the two-step process identified by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8] satisfied. There is no “identification of what is said might lead [the trial judge] … to decide [the case] other than on its legal and factual merits”. There is also “no articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
In approaching the appeal as I have, I am mindful of what the Full Court of the Federal Court of Australia said in Bahonko v Sterjov 166 FCR 415 at [3], namely:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Citations omitted)
Thus, although I have considered the material that was before the trial judge and dissected her Honour’s reasons for judgment in the search for appealable error, ultimately it is the task of the appellant to identify and establish the same, and in this case that has simply not occurred. Accordingly, I find the appeal has no merit and must be dismissed.
Costs
At the conclusion of the hearing of the appeal I received submissions from the parties and the ICL as to the question of costs depending upon the result of the appeal.
In the event the appeal was dismissed, both the mother and the ICL sought an order for costs. The father opposed any order being made on the basis of his financial circumstances. He informed me that he had casual employment and his gross income was $700 per week, of which $380 per week is committed to the repayment of the mortgage registered on the title to the home that he owns.
Applying s 117 of the Act, there are circumstances that justify orders for costs being made, namely the father has been wholly unsuccessful in the appeal. The father’s financial circumstances are relevant, but this court has often held that even impecuniosity is not a bar to an order for costs being made where such an order is otherwise justified. This is not a case where the father is necessarily impecunious, but it is a case where not only has the father been unsuccessful, but it is readily apparent that there was never a reasonable chance of it succeeding. In those circumstances both the mother and the ICL have been put to the expense of incurring unnecessary legal costs and to repeat, orders for costs in their favour are amply justified.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Strickland delivered on 26 May 2017.
Associate:
Date: 26 May 2017
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