Hamish & MacPherson

[2023] FedCFamC1A 74

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hamish & MacPherson [2023] FedCFamC1A 74  

Appeal from:

MacPherson & Hamish (No 2) [2022] FedCFamC1F 964

Appeal number:

NAA 5 of 2023

File number:

TVC 768 of 2021

Judgment of:

ALDRIDGE, GILL & CAMPTON JJ

Date of judgment:

18 May 2023

Catchwords:

 FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders that provided for him to spend no time with the children – Apprehension of bias – No basis to infer bias – Where a number of the grounds of appeal assert the primary judge placed insufficient weight or too much weight on particular evidence  – Weight challenges incapable of establishing error absent a determination that the decision was manifestly wrong – Where the primary judge’s decision was not manifestly wrong – Whether the primary judge made mistakes as to fact – Whether the primary judge failed to take into account relevant considerations – Whether the primary judge did not obtain evidence as to particular matters and was obliged to do so – No error demonstrated by the primary judge – Appeal dismissed – Costs.

Legislation:

Evidence Act 1995 (Cth) Pt 3.3

Family Law Act 1975 (Cth) ss 69ZT, 102NA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3

Cases cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Concrete Pty Limited v Parramatta Design and Developments Pty Ltd & Anor (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Number of paragraphs:

63

Date of hearing:

3 May 2023

Place:

Heard in Brisbane, delivered in Sydney

The Appellant:

Litigant in Person

Counsel for the Respondent:

Mr Fellows

Solicitor for the Respondent:

Lee Turnbull & Co

Counsel for the Independent Children's Lawyer:

Mr Baston

Solicitor for the Independent Children's Lawyer:

Murray & Lyons Solicitors

ORDERS

NAA 5 of 2023
TVC 768 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HAMISH

Appellant

AND:

MS MACPHERSON

Respondent

order made by:	ALDRIDGE, GILL & CAMPTON JJ
DATE OF ORDER:	18 May 2023

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant shall pay the respondent’s costs in the sum of $9,972.65 within a period of three months from the making of these orders into an account identified to him in writing by the solicitors for the respondent.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hamish & MacPherson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, GILL AND CAMPTON JJ:

INTRODUCTION

1. This matter concerns an appeal from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 8 December 2022.

2. In broad terms, that judgment provided for a change in the parenting arrangements for the two children of the parents’ relationship, the elder child (now aged seven) and the younger child (now aged four). That change meant that the children would remain living with the mother, who is the respondent to the appeal, but spend no time with the father, who is the appellant, including no longer spending weekly time with the appellant on a supervised basis.

3. Sole parental responsibility was allocated to the respondent.

   BACKGROUND

4. The parties commenced a relationship in about early 2015 and were married in mid-2016. The parties separated in late 2019 within the same residence, until the appellant moved out in early 2020.

5. The parties divorced in July 2021.

6. On 14 June 2021, the respondent commenced proceedings by filing an Initiating Application.

7. The final orders were made following a contested hearing before the primary judge on 17–21 October, and 3 November 2022.

8. The appellant filed his Notice of Appeal on 5 January 2023.

   GROUNDS OF APPEAL

9. Fifteen grounds of appeal were set out in the Notice of Appeal.

10. On 17 March 2023, the appellant filed a Summary of Argument that gave no clarity to the matters raised in the Notice of Appeal, and although at times touched upon the appeal grounds, in large part departed from them.

11. On the hearing of the appeal, the appellant identified that he would only be pursuing the 15 grounds that he had set out in his Notice of Appeal, rather than what was expressed in his Summary of Argument.

12. The appellant made plain that, of those 15 grounds, his primary complaint as to the judgment was contained in his first appeal ground. This first ground asserted that the primary judge failed to consider the emotional impact or long-term emotional harm to the children that would result from the orders made that provide for no contact between the appellant and the children.

13. To the extent that the grounds asserted bias or a lack of procedural fairness, such grounds are dealt with first, in accordance with Concrete Pty Limited v Parramatta Design and Developments Pty Ltd & Anor (2006) 229 CLR 577, as they are matters that go to the integrity of the hearing process.

14. Bearing in mind that re-ordering of the grounds, the appeal grounds pursued by the appellant are set out below.

    Ground 8: That the learned Justice made off handed comments during trial that to have a ‘personality disorder, one has to have had issues before the age of 15 years, the learned Justice erred a comment of “that we know of” without any information gathering from the [appellant’s] parents. Thus, showing unfair biased.

15. The central aspect of this ground appears to be that of bias on the part of the primary judge. The apprehension of bias principle, as identified in cases such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, is one directed to the protection of the integrity of the judicial process. The test to be applied is whether “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (at [6]).

16. It is unclear what comments are said to raise bias, as such have not been sufficiently identified. Correspondingly, it is also unclear how comments about a personality disorder would lead to it being considered by a reasonable lay observer that the primary judge might not bring an impartial mind to determining the matter.

17. To the extent that the ground is rather a criticism regarding a failure of the Court to gather information from the appellant’s mother and stepfather, it cannot be maintained. The appellant relied on affidavits of his mother and stepfather, and they each gave oral evidence at the trial. To the extent the appellant contends additional evidence was available and not given by those witnesses, this was a matter within the appellant’s hand to rectify. The primary judge was not obliged to pursue such evidence.

18. On either basis, there is no merit in this ground.

    Ground 13: The learned Justice showed biased/discrimination against the [appellant’s] mental health and not taking into consideration the [respondent’s] mental health.

19. Although both parties were assessed by a psychiatrist, Dr D, the appellant has not identified that the respondent’s mental health was a matter pursued by him at trial. Under those circumstances the differential consideration given by the primary judge to those issues does not suggest that the primary judge was biased and is not a basis upon which to consider that a reasonable observer would conclude that the primary judge might not bring an impartial mind to the resolution of the matter. The different treatment of each parties’ mental health was a product of what was in issue at the trial.

    Ground 14: That the learned justice did not show procedural fairness and was biased when choosing to assist the ICL in her final summations to the court, by leading the ICL in her wording and taking an extra break period to give the ICL time to for more summations.

20. Absent particularisation or identification of matters occurring in final addresses, nothing in the exchanges between the primary judge and the Independent Children’s Lawyer (“the ICL”) falls outside proper interventions by the primary judge to test, clarify and at times contradict the submissions being made by the ICL. Nothing emerges that has the capacity to suggest that a reasonable observer would conclude that the primary judge might not bring an impartial mind to the resolution of the matter.

    Ground 1: That the learned Justice erred in failing to consider the emotional impact and/or long-term emotional harm upon the children in denying them spending any time or communicating with the [appellant].

21. As identified earlier, this was the key issue identified by the appellant as requiring appellant intervention. This was a matter explicitly considered by the primary judge. In the context of the primary judge’s conclusion that the appellant presents an unacceptable risk of harm to the children that cannot be ameliorated by supervision, the primary judge specifically considered the impact of the ending of the relationship between the children and the appellant on the children.

22. It cannot be sustained that it was a matter that was not considered.

    Ground 2: That the learned Justice erred in allowing the report of [Dr D] into evidence.

23. The assessment of the appellant’s mental health was a significant aspect of the trial, with evidence being taken both from Dr D, who was called by the ICL, and Dr G, a psychiatrist who was called by the appellant.

24. The admission over objection of the evidence of Dr D was a matter dealt with by the primary judge at [175] and following, where, after reciting the objections taken to the evidence of Dr D (one of which relied upon the applicability of the opinion rule as set out at Pt 3.3 of the Evidence Act 1995 (Cth) being provisions excluded from operation in these proceedings by s 69ZT of the Family Law Act 1975 (Cth) (“the Act”)), the primary judge set out the deficiencies and issues of non-compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) that accompanied the report of Dr D. Having, both in the body of the judgment and at [178], set out aspects of Dr D’s evidence that rendered her report as relevant to the parenting proceedings, the primary judge set out the manner in which the deficiencies and non-compliance were addressed so that it was not procedurally unfair to receive the report. Those steps included the retention of a responding expert by the appellant (Dr G), administering questions to Dr D in advance of the trial and cross-examination of Dr D.

25. The primary judge both identified the evidence to be relevant and ensured adequate provision was made to ensure it was not procedurally unfair to admit the evidence.

26. No inadequacy in the primary judge’s approach to these issues has been identified, and no error in admitting the evidence of Dr D has been established.

    Ground 3: That the learned Justice erred in placing too much weight upon the report of [Dr F] as it pertained to the [appellant].

27. This is an appeal from a discretionary judgment, pursuant to the principles identified in House v The King (1936) 55 CLR 499. As confirmed by the High Court in Bugmy v The Queen (2013) 249 CLR 571, such a complaint of “too much weight” is incapable of establishing error of itself, at best pointing to a circumstance that might, when accompanied by other circumstances, point to the result being manifestly wrong.

28. As will be seen later, it cannot be considered that the judgment given by the primary judge was manifestly wrong. Rather, the exclusion of the appellant from the lives of these children was consonant with the serious risk that he demonstrably poses to them.

29. The complaint as to weight given to the evidence of Dr F is not a competent ground of appeal.

    Ground 4: That the learned Justice erred in not considering there were no allegations of domestic violence or coercive control, until the report from [Dr D]. The [respondent] proceeded to update affidavits to reflect this report for the secondary gain of alienating the children from [the appellant].

30. This ground relies upon the proposition that no complaint was made as to family violence by the respondent prior to the report of Dr D, a report from June 2022. As identified by the respondent this is not a proposition that can be maintained, particularly given that a temporary protection order that named the respondent as the aggrieved and the appellant as the respondent was made in March 2020, as identified by the primary judge at [16], and family violence was raised by the respondent in the Notice of Risk filed by her on 14 June 2021.

31. The factual basis for this challenge is not open on the evidence before the primary judge. Accordingly, it cannot be sustained that this is a matter that the primary judge failed to take into account.

    Ground 5: That the learned Justice erred did not properly assess the evidence by not asking for evidence in the accusations of domestic violence and has taken the word (hearsay) of the [respondent], her partner and friends who support her claims to get the verdict she required.

32. The meaning of this ground is difficult to ascertain. To the extent that it complains that the primary judge did not “properly assess”, it falls short of a failure to consider a relevant matter.

33. As with the discussion at Ground 3 regarding the appellant’s complaint of “too much weight”, a complaint of “did not properly assess” does not constitute a failure to consider.

34. To the extent that the ground is a challenge to fact finding, no shortcoming in the primary judge’s factual determinations that the appellant has engaged in family violence toward the respondent is apparent. The primary judge particularised the various incidents, set out the degree to which there is support from other witnesses including, but not limited to, their accounts of the children repeating threats made by the appellant in their presence to perpetrate serious harm or death upon the respondent. Further, the primary judge identified relevant admissions made by the appellant during cross-examination at the trial, including as to impersonating the respondent through the use of her old telephone, a practice that he accepted constituted appalling family violence upon her.

35. There is nothing that has been identified by the appellant that supports the assertion that the primary judge erred in fact, or that demonstrates that the primary judge was wrong in the manner identified in Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550.

36. It is unclear what is meant by the complaint that the primary judge did not ask for evidence in relation to family violence. Her Honour describes plentiful evidence on that issue. Presumably, the appellant’s complaint is that the primary judge failed to ask for evidence that would exonerate the appellant. The appellant has not identified what this evidence might be. Presumably, if there was such evidence it was in the appellant’s hands to identify and call it. The primary judge was under no duty to call such evidence.

37. There is no merit in this ground.

    Ground 6: That the learned Justice erred in placing too much weight in the [appellant’s] previous wrong doings rather than the status of his life which is improving.

38. Again, this appears to be a complaint as to weight, a matter that, absent identifying that the decision is manifestly wrong, does not form a proper challenge to this discretionary decision.

    Ground 7: That the learned Justice made statements on health care which was inappropriate and inaccurate.

39. This ground does not clearly identify a recognised basis to challenge the judgment.

    Ground 9: That the learned Justice erred in making a costs order against the [appellant], given the [appellant] was in receipt of legal aid funding pursuant to a section 102NA order.

40. The receipt of funding from legal aid is a consideration identified in s 117 of the Act as being relevant to the exercise of the discretion to order costs. Both the nature of the appellant’s legal representation and the impecuniosity of the appellant were identified by the primary judge. It cannot be said that there was a failure by the primary judge to take into account the relevant consideration that the appellant was in receipt of legal aid through the s 102NA scheme.

41. To the extent that the ground is directed to a criticism other than a failure to take the appellant’s legal aid funding into consideration, it can be no more than a challenge to the weight given to that consideration by the primary judge. As discussed above, such a criticism, absent also establishing that the decision was plainly wrong, is not a recognised challenge to a discretionary determination such as this.

42. No error is identified in relation to what was a discretionary decision made as to costs.

    Ground 10: That the learned justice did not appropriately consider the evidence of [Dr G’s] report given he is a substantially more experienced psychiatrist than [Dr D].

43. This ground appears to be directed to the weight placed upon the evidence of Dr G, in comparison to the weight given to the evidence of Dr D.

44. The primary judge gave careful consideration to the evidence of Dr G. The weight to be given to the evidence of Dr G was a matter for the primary judge. As identified earlier, a complaint as to weight does not, unless accompanied by identification that the conclusion is manifestly in error, form a legitimate challenge to a discretionary decision.

45. In any event, the conclusions relied upon by the primary judge are consistent with the opinion of Dr G that, should the court accept the allegations made by the respondent (which the primary judge did), then a finding of a personality disorder is warranted.

46. Under those circumstances, the nature of the appellant’s complaint is unclear.

    Ground 11: That the learned Justice erred in not considering [Dr D’s] suggestion that if the [appellant] partakes in a treatment program Dialectal Behaviour Therapy then the ideal would be both parents in the lives of the children.

47. As best as can be ascertained, the proposition contained within this ground does not represent any opinion proffered by Dr D. Whilst Dr D recommended dialectical behavioural therapy as the “gold standard” for treatment of a personality disorder (Transcript 21 October 2022, p.468 lines 37–38), as the primary judge found the appellant to suffer from, Dr D did not suggest that the appellant’s mere partaking in such would mean that it would be ideal to have both parents in the lives of the children.

48. Accordingly, it cannot be suggested that the primary judge failed to take such evidence into account.

49. In any event, the primary judge gave careful consideration to the prospects of the appellant dealing successfully with his addiction and other mental health issues, and so it cannot be sustained that the primary judge failed to have regard to such matters.

    Ground 12: That the ICL showed bias by not considering what is in the best interest of the children as reported by the Children’s psychologist that the children have both parents in their life.

50. Although referencing a complaint of bias, the underlying complaint is in reality a claim that the primary judge failed to consider evidence that the children should have both parents in their life.

1. It is firstly unclear what evidence is being referred to. Secondly, the value of the relationship between the appellant and children, as observed by the family report writer, was a matter carefully weighed by the primary judge. No error is demonstrated.

   Ground 15: That the ICL did not act independently and followed the [respondent’s] legal team.

2. Absent any submission directed to this matter, this complaint does not rise beyond a mere assertion of a lack of independence on the part of the ICL. Without more, it does not constitute a valid ground of challenge to the discretionary decision made by the primary judge.

   CONCLUSION

3. No ground identified appellable error by the primary judge. To the extent that the grounds were reliant on an unstated assertion that the judgment was manifestly wrong, such has not been established. The determination reached by the primary judge, which resulted in the appellant having no contact with the children, was open on the circumstances of the case.

4. The appeal will be dismissed.

   COSTS OF THE APPEAL

5. The respondent pursued the costs of the appeal in the event that the appeal was dismissed.

6. In aid of this application, the respondent filed a costs schedule setting out both an amount asserted to represent a party-party assessment, based on the scale contained at Sch 3 of the Rules, and an indemnity amount.

7. Appropriately, the respondent did not pursue an indemnity award.

8. The party-party sum pursued by the appellant was for lawyer’s costs of $2,710.79 and counsel’s costs of $7,261.86. It may be observed that such costs fall well short of the sum actually incurred by the respondent, comprising approximately 50 per cent of such.

9. The starting position, as set out at s 117 of the Act is that each party bear their own costs. This position may be departed from where there are justifying circumstances drawn from the considerations set out at s 117(2A).

10. In this case, those of the considerations that emerged are the impecuniosity of the appellant, and that the appellant, by the dismissal of this appeal has been wholly unsuccessful. It was also identified that by virtue of the orders at first instance it is the respondent who bears the expense of the raising of the children in the context of the appellant’s impecuniosity.

11. No dispute was raised in relation to the appellant’s claim of financial hardship. A part of that hardship may arise from the previous costs award made in the trial of the matter in the sum of $10,000, referable to the manner of the conduct of the appellant in the trial. The appellant claimed that he has no capacity to meet a costs award. This is relevant but not necessarily determinative of the issue of whether a costs order ought to be made.

12. Against that, the respondent has been put to the expense of meeting an appeal that was without merit and wholly unsuccessful.

13. Despite the financial position of the appellant, the circumstances justify the making of an order for costs in accordance with the Sch 3 amounts identified by the respondent. Given the financial circumstances of the appellant, he will be given an extended period to pay those costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Campton.

Associate:

Dated:       18 May 2023