Harron & Eley
[2021] FedCFamC1A 50
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Harron & Eley [2021] FedCFamC1A 50
Appeal from: Harron & Eley [2021] FCCA 1123 Appeal number(s): NOA 24 of 2021 File number(s): NCC 1255 of 2019 Judgment of: AINSLIE-WALLACE J Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders providing for the mother to have sole parental responsibility – Where the child is to spend no time with the father – Where the father had never met the child – Where no grounds were made out and the appeal was dismissed Legislation: Family Law Act 1974 (Cth) Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 90 Date of hearing: 15 October 2021 Place: Sydney The Appellant: Self-represented litigant Counsel for the Respondent: Mr Kissick Solicitor for the Respondent: Swanwick Murray Roche Lawyers Counsel for the Independent Children’s Lawyer Ms Willey Solicitor for the Independent Children’s Lawyer Madden Solicitors ORDERS
NOA 24 of 2021
NCC 1255 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HARRON
Appellant
AND: MS ELEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Appeal against the orders of a Judge of the Federal Circuit Court made on 5 May 2021 be dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harron & Eley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
By his Amended Notice of Mr Harron (“the father”) appeals from final parenting orders made by a Judge of the Federal Circuit Court on 5 May 2021. The orders relate to X born in
2013 (“the child”) the child of the father and Ms Eley (“the mother”).
The primary judge ordered that the mother have sole parental responsibility for the child and that she live with the mother. No orders were made that the child spend time of any sort with the father although the primary judge’s orders provided that the father may send the child age appropriate gifts and cards.
The father has never met the child.
BACKGROUND
It is helpful to give some background to the parenting matter to give context to the appeal and to assist in understanding the father’s contentions.
The mother said that she and the father were in an “on and off” relationship over a period of years. It appears from the reasons for judgment that the father denies being in a relationship with the mother. However, that is not of itself particularly relevant. The primary judge referred to the child’s conception and said:
7. The father denies having had consensual intercourse with the mother at the time that [the child] was conceived. He expresses his view about her conception in a variety of ways in his material. In his affidavit filed 26 April 2019 at paragraph 13 he says:
2012 – …. I had been suffering from depression and was medically followed (sic) at [D Hospital]. On a rainy evening at about midnight I was having high temperature with fever. I fell out of bed on the floor at my address. Out of worry I sent a text to the [mother] telling her what had happened to me. She offered me to come over to look after me. When I arrived at her place, as I was lying in bed she gave me some painkillers and told me she wanted to have sex. I refused because I was not there for that. The [mother] punched me in the chest and I passed out. I think that is the night conception happened. The [mother] must have somehow ejaculated me in my sleep and inseminated herself. I do not remember having sex with her that night. If it happened it was not consensual. In the morning I went back to my place.
The mother denies the father’s account of the child’s conception.
The primary judge noted that by the time the mother discovered she was pregnant the father had ceased living in the same town and had moved away. The mother contends that she told the father about her pregnancy and he told her that he did not wish to be involved with the child.
It appears uncontroversial that whatever their previous relationship, by the time the mother became pregnant it had ended.
On 10 July 2013, the mother brought proceedings seeking a declaration of paternity; orders that the father be assessed in relation to child support and she also sought parenting orders in relation to the child. The father did not attend the hearing although the primary judge observed that he had been notified by the Court of the proceedings. On 26 February 2014, the father was declared to be the child’s father and an order was made that he be assessed for the purposes of child support. The Court further ordered that the mother have sole parental responsibility for the child and she live with the mother. The Court ordered that the child spend time with the father as agreed between the parties.
It is clear that no arrangement was made for the father to spend time with the child and at the time of the hearing before the primary judge, he had not then met the child. The father contended that he had wanted to see the little girl but the mother had prevented him from doing so.
As the primary judge observed at [16], the father’s position in the hearing as demonstrated by the several affidavits he filed, was that the child should immediately move to live with him and that he be the primary carer “for compensation of 6 years estrangement and alienation.”
The father said:
25. I urge the court and judge to review this case and place care of the child in the hands of her father who has never been on welfare and as compensation for lost years. I would like to be the primary carer, with full parental responsibility and custody to save her from a life of welfare dependency, teenage pregnancy and abuse. It is wrong that a child is growing in this country not knowing her father. …
26. … My daughter has had no say on who she chooses to be around her. I fear the boyfriend of the [mother] is abusing her. Those two have too much control and excessive authority on her life. She is not living a life of her choosing. She will not achieve her potential in life with these long term welfare recipients. I ask the court to provide full custody and parental responsibility to the father. The father also to be the primary carer for compensation of 6 years of estrangement and alienation. There needs to be compensation to the child and father for psychological abuse. This will allow the mother and her boyfriend to find work and become role models for parenting.
(Father’s affidavit filed 26 April 2019)
The father alleged that the mother and her present partner posed risks of abuse to the child and he filed a Notice of Risk in which he made a number of assertions of abuse about the mother and her partner.
The allegations in the Notice of Risk filed 26 April 2019 included:
Psychological harm to the child by denying her knowledge of her biological father. The child has had no say in her upbringing, where and with whom she would like to live. She has been denied the right to accept or reject the presence of the mother's boyfriend around her. She has been denied the right to chose (sic) who to father her. She has been denied her biological father. The child is just a source of income for the unemployed mother and boyfriend. My daughter has had no say and understanding if she is okay for the boyfriend to touch, raise her, father her. The [father] did not agree to the boyfriend being in the company of the child especially alone with no other adults around. Child protection services need to interview my daughter about normalized physical and sexual abusive-coaching behaviors (sic) by the boyfriend of the [mother]. It is abuse to intentionally deny a child knowledge of her biological father. The mother and boyfriend have threatened the father to not make contact
The father also alleged that the mother posed a risk to the child and said:
The mother … and [the mother’s partner] are trying to estrange the child from her father. Estrangement is used to maximise welfare and child support. Both [the mother] and [the mother’s partner] have been unemployed for decades. The adult parties will harm [the child] if she tries to question her upbringing and seek her father. Both the mother and boyfriend have made threats to the father on the basis of race and faith. [The child] having a Muslim name and being half brown is at risk of being harmed by the mother and boyfriend. The [father] has seen abuse of the elder daughter… by the mother. The mother has also assaulted the [father] three times in public in front of witnesses and numerous times behind closed doors. The mother has assaulted the father at [Café A] in 2012 in front of [Ms A]. The mother has assaulted the father twice in front of [Ms B]. The mother has a short temper. She has a violent history with … the father of the elder daughter
(As per the original)
The Notice of Risk continues and asserts all manner of serious risks to the child at the hands of the mother and her present partner.
At the hearing before the primary judge in April 2021 the father was represented by lawyers and counsel appeared for him. His representation came about by operation of s 102NA of the Family Law Act 1975 (Cth) (‘the Act”) the Family Violence and Cross-Examination of Parties Scheme. The section provides protection for parties in certain cases, to prevent the examining party from directly cross-examining the witness party, in cases where there is an allegation of family violence and one of several criteria is satisfied. Where the criteria are established, the operation of the section prevents a party personally cross-examining the other and mandates that the cross-examination be conducted by a legal practitioner acting for the party wishing to cross-examine.
It appears that after the father was legally represented, his position in relation to the child modified somewhat. The father sought orders that he and the mother share parental responsibility and the child live with the mother. He sought orders for time with the child commencing with two occasions of supervised time of up to four hours equal in each of April and June 2021, then he proposed that in September 2021, he see the child on one occasion for up to four hours “semi-supervised”. He proposed that in December of that year on two occasions, the child spend four nights with him, with the child to fly from [City D] where she lives to the father’s home in NSW. The proposal then seeks one half of the school holiday time in Easter 2022 and in 2023 one half of each school holiday period.
As to the proposed overnight time with him at his house in NSW, the father declined to divulge where he was living other than saying he lived in NSW, nor would he provide any details of his wife because he said; “I hold big concerns for her safety if [the mother] or [her present partner] were to find out where we live” (Father’s affidavit filed 22 December 2020, paragraph 77).
Despite this apparently modified position in relation to the child, the primary judge observed that the father’s oral evidence made it “fairly clear” that his primary position was that the child should “simply come and live with him” (at [22]). Her Honour referred to the father’s then most recent affidavit filed 30 March 2021 which she quoted at [33] in which the father proposed “equal time” being in the context of “lost time, compensation for lost (sic) of time, estrangement and alienation…”.
The primary judge said:
34. As what I am understanding from that is the father is considering that the mother having had the child live with her for the entirety of the child’s life, remembering that the child has … turned eight, the child should now come to live with him for eight years, making that equal time.
The primary judge had the benefit of a family report. The Family Consultant, Ms C, conducted interviews with the father and mother in April 2020. During the interview with the father he reported to the Consultant that he wanted the child to live with him or at a minimum spend equal time with him (Family report filed 6 May 2020, paragraph 12).
The primary judge at [23] quoted paragraph 90 from the report of the Family Consultant where she set out the competing propositions of the parties and discussed their impact on the child. It is worth repeating that evidence:
If [the child] moves to live with her father, or to live equally with him (setting aside the practical difficulties of this) she is likely to feel distressed, confused, worried and fearful. She may feel rejected by her mother as she is unlikely to understand how her mother could allow this to happen. It will likely destroy her trust in those she loves and her capacity to trust people generally.
It may be highly distressing to her for a considerable period, to the point she could experience depression. This is likely to impact on her capacity to adapt to living with her father and attending at a new school. It is highly likely that on her first visit to her mother [the child] will refuse to return to spend any time with her father. It is unknown if there will be any benefits to this arrangement for [the child] as the distress she is likely to experience will undermine any potential benefit for her.
If [the child] does not spend time with her father, her life will continue on largely unchanged. There is unlikely to be any immediate disadvantage to her. In the longer term she will be missing out on the theoretical benefit of having a relationship with her father and her paternal family. It will mean she is unlikely to have any relationship with her father in the longer term. Along with the potential for additional family to love and cherish her, spending time with her father will provide her information about her paternal and cultural heritage. Without this, children can experience problems with their identity, self-esteem, and self-worth.
The primary judge continued and summarised the consultant’s recommendations.
24. [The Family Consultant] poses in her recommendations two different ways forward for [the child]. One, in the event that the Court, that is me, determines that the father is genuine in seeking a relationship with [the child], that he will be committed to maintaining this, and that he will ensure [the child] is not exposed to any information about the dispute or negativity about her mother, and her other recommendation is based upon a determination by me that the father will not be committed in his relationship with [the child] and that he will expose her to his attitude towards her mother and this dispute.
The primary judge concluded that nothing in the father’s evidence either written or oral demonstrated that he had considered the effect on the child of the orders he seeks, for her to leave the only parent with whom she has lived (at [74]).
In considering the father’s many allegations of risk to the child from living with the mother and her partner, the primary judge observed that they were, in the main, allegations without evidence to support them. The primary judge concluded that there was no evidence that the child had been harmed in the mother’s care nor had any outside agencies had intervened in relation to her care (at [84]).
Her Honour did however consider the father posed a significant risk to the child by reason of his wholly negative attitude to the mother and his perception of himself as having been a victim of her wilful and deliberate acts including blaming the death of his infant son on the mother and her receipt of child support payments for the child (at [79]). The primary judge concluded that the father’s attitude to the mother would be harmful to the child and her Honour saw nothing which would tend to show he could ameliorate or change that attitude. The primary judge concluded that the father lacked insight into those behaviours (at [80] and [81]).
In light of the Family Consultant’s evidence about the nature of the contact between the child and father necessary to build a relationship, the primary judge considered the father’s proposed time frame as:
96.So it would seem that the father does not have the financial capacity, or perhaps the willingness (it is not necessarily one or the other, it is maybe a combination of both), to focus on having a number of meetings with the child to allow a relationship to commence.
The primary judge said:
100. So I cannot find that the father is genuine in seeking a relationship with [the child]. He is determined to have the child in his care. He is determined to be allowed to have the child with him in the way that he proposes, without anybody else telling him what to do. As he says in his affidavit that I read earlier into the record, he is not interested in having to negotiate with the mother; this is simply what he wants to have happen.
101 So I cannot be satisfied that the father is genuine in seeking a relationship with [the child] and that he is committed into maintaining it. There is nothing about his proposals which would cause me to form the view that he is interested in the child per se, rather than interested in what he perceives his rights and how they have been taken away from him by the mother and the system in its entirety.
This together with the primary judge’s conclusions about the father’s negative view of the mother persuaded her that there was a risk to the child in the father’s care.
Turning then to whether it was possible for the child to have a meaningful relationship with both parents, the primary judge concluded that it was not because if she lives with either parent it was unlikely that she would be able to have a relationship with the other (at [105]). The primary judge found that the child had a “fully formed” relationship with her mother and her mother’s partner.
Her Honour continued and considered each of the relevant matters to which s 60CC of the Act refers and concluded that it was in the child’s best interests to continue to live with the mother and that the mother have sole parental responsibility for her, finding that it would be contrary to her best interests for the parents to have to communicate over necessary decisions. The primary judge concluded that the child should have not time with the father and found that the mother had the capacity to support the child in the event that she wanted to have a relationship with the father later in her life (at [133]).
THE APPEAL
The father asserts six grounds of challenge to the primary judge’s orders. The father provided a written summary of argument in support of the grounds, however in the appeal hearing he did not wish to amplify those submissions or add to them but said that he merely wanted to see his child.
Grounds 1, 4 and 5 contend that the primary judge was “biased, displayed apprehended bias, subconscious bias and conscious bias”; that the primary judge failed to afford the father procedural fairness and denied the father natural justice.
Assertions of judicial bias; that a trial or proceeding was procedurally unfair or that a litigant was denied natural justice are very serious and, if correct, cut to the heart of the validity and acceptability of the outcome and for that reason such contentions must be considered first because if established, there can be no outcome other than a re-hearing (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]).
Ground 1 Bias
This ground is a scattergun of assertions ranging from actual bias to subconscious bias. Each of course bears its own specific legal identity and each sits in different factual matrices.
Little assistance in understanding what error is asserted, is gained from reading the father’s summary of argument which in the main repeats his contentions before the trial judge and his complaints about the mother and her partner.
Turning then to so much of the submissions which appear to support the argument, the father contends that the judge was biased because her Honour did not accept his allegations that the mother was violent to him and failed to conclude that the father was a victim of the mother’s violence; that the primary judge failed to accede to the orders he sought for time with the child; that the primary judge did not conclude that the mother had “used the father then disposed of the father keeping his name for child support purposes”; did not conclude that the mother’s allegations in relation to the father were fabricated; did not accept his allegations about the mother’s conduct and that of her partner but preferred their evidence to his and, did not accept his evidence in preference to the mother’s.
It seems then that the alleged bias, at least for the major part is said to be apparent in the primary judge’s reasons.
In SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] von Doussa J, said:
... Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion…
The father’s submissions are in in truth challenges to her Honour’s fact finding although clothed as bias. The clear thrust of the submissions is where the father’s account of events was not accepted or when the orders he sought were not made and, conversely when the mother’s evidence was accepted and the orders she proposed were made, it was because the primary judge did not have an open mind.
It is inevitable that as part of the decision making process, a judge must form a view about the evidence and, where there are disputes, must resolve those disputes. In this case, the primary judge preferred the mother’s evidence to that of the father. The father does not provide a basis for asserting that the decision was affected by apprehended bias and there is nothing in his submissions that supports the contention.
The father further complains that the judge “goes on a lengthy explanation to support the denigration of the father by the barrister, denigrate his application and denigrate his efforts to meet his child in the reasons of judgment” (Father’s summary of argument filed 20 August 2021, paragraph 2).
Nothing to which the father pointed in his written submission supports the asserted bias.
The father also alleges bias in the primary judge’s conduct during the trial.
The father says that he was “threatened with psychiatric assessment” and “yelled at profusely” when he did not give the answers the barristers wanted. He also asserts that he was “threatened at trial with a “no contact order with his child when he was not giving the answers the barrister of the mother and the barrister of the ICL wanted” (Father’s summary of argument filed 20 August 2021, paragraph 2).
Apart from the bald assertions in the summary of argument about being “yelled at” and “threatened” the father does not deign to identify in the transcript of the proceedings before the primary judge where this complained of conduct occurred. The transcript shows that at no point did his lawyer object to the way in which the proceedings were being conducted. There is nothing in the transcript to support the father’s assertion that he was threatened with a “no contact order”.
At a point in his cross-examination, the primary judge enquired of the father’s barrister whether she should be concerned for the father’s mental health. This comment was made in the context of the evidence the father was then giving. Given the gravity of the allegation of bias, it is perhaps helpful to set out extracts from the father’s evidence to put the primary judge’s comment in proper context.
The lawyer for the mother commenced his cross examination of the father by asking about the very small amount of child support the father had paid in recent years. The father was not at the time of the trial working. The father said:[1]
[1] Transcript 20 April 2021, p.5 line 42 to p.7 line 3
[THE FATHER]: I’ve just struggled to adjust from all what’s happened to my – with – I’ve explained in my affidavit. So just having problems to just sort myself out, my life. I been – it’s been absolute chaos and difficulties.
[COUNSEL FOR THE MOTHER]: And this is all of course, the respondent mother’s fault, is it?
[THE FATHER]: No. It’s a combination of – I don’t know, factors outside my control.
[COUNSEL FOR THE MOTHER]: What factors?
[THE FATHER]: Just .... events just like I don’t have the control on. Just - - -
[COUNSEL FOR THE MOTHER]: I just missed that. Sorry. The events, you said?
[THE FATHER]: Yes. Just like stresses and just problems to – just I guess the fact that I’ve got two children I’ve never met.
[COUNSEL FOR THE MOTHER]: Yes?
[THE FATHER]---So it’s – it’s weighed heavily on me.
[COUNSEL FOR THE MOTHER]: All right. You – so what’s the second child you haven’t met?
[THE FATHER]: Well, I’ve got a son who passed away. …
….
[COUNSEL FOR THE MOTHER]: And you said at some point that [the child] has an older sister she hasn’t met?
[THE FATHER]: Look, that’s a - - -
[COUNSEL FOR THE MOTHER]: An invention?
[THE FATHER]:---I did not put that in the affidavit. What happened, it’s a long story which - - -
[COUNSEL FOR THE MOTHER]: Did you make up that story?
[THE FATHER]: No. Actually, it’s the fact that someone played a trick on me.
[COUNSEL FOR THE MOTHER]: Someone played a trick on you?
[THE FATHER]: Yes.
[COUNSEL FOR THE MOTHER]: You were the victim of some trick, were you?
[THE FATHER]: Well, someone just got a child to speak to me on the phone, pretending to be my child and then after I told them about what happened to my – in the current situation of [the child], and they just played a trick on me because yes – because I didn’t want to see them anymore.
[COUNSEL FOR THE MOTHER]: So who is this person?
[THE FATHER]: Just an old person I used to date and then I stopped dating.
[COUNSEL FOR THE MOTHER]: What’s the name of that person?
[THE FATHER]: I forgot. It’s a long time back. So - - -
[COUNSEL FOR THE MOTHER]: Was it? You can’t remember the name of the person?
[THE FATHER]: No. It’s - -
[COUNSEL FOR THE MOTHER]: Was it someone endeavouring to extort money out of you by claiming they had a child to you? Is that right?
[THE FATHER]: No. They just wanted to get my attention to talk to them.
Later in his examination, the father was taken to the orders he sought in the hearing which included: [2]
AVO to protect the [father] and entourage from the [mother] and her boyfriend, ….
[2] Transcript 20 April 2021, p.21 lines 1–2
Counsel for the mother said:
…Who is the entourage?
The father responded:[3]
I guess my partner, my two year old …
[3] Transcript 20 April 2021, p.21 lines 4–5
Counsel for the mother quoted from the balance of the paragraph which was:[4]
The [father] fears murder, retaliation from the [mother] and her boyfriend for inheritance.
[4] Transcript 20 April 2021, p.21 lines 7–8
The father confirmed that remained his view and said:[5]
I do live in fear. I have to say that…I’ve been assaulted so I have fear.
[5] Transcript 20 April 2021 p.21 lines 7–15
The father was taken to a paragraph in an affidavit filed 3 September 2019 in which he said:
34.It really bothers me to share this information with people who have murdered my son. I am providing this information for when my daughter read these court documents to understand what has happened…
It was suggested to the father that he was angry about having to pay child support. [6]
[COUNSEL FOR THE MOTHER]: …you have told the mother in texts, haven’t you, that you intend to have your daughter compensate you for the money, haven’t you?
[THE FATHER]:---I regret those comments back then. …I was quite unwell.
[6] Transcript 20 April 2021, p.24 lines 5 – 9
When being asked questions by the Independent Children's Lawyer the father confirmed that he was not willing to provide any information about his wife or who lives in his household:[7]
COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: So you will only be prepared to advise of any personal details of your household if [the child] was to spend time?
[THE FATHER]:---I can provide information to the lawyers but not to the mother – … and to her partner because of the history of – of violence I have been subjected to.[8]
[7] Transcript 20.4.2021 page 25 lines 29–34
[8] Transcript 20 April 2021 p.26 lines 9 –12
Further questions elicited that there had been two occasions on which the father said the mother punched him, and a third occasion when he said the mother punched him, causing him to become unconscious and then inseminated herself using him.
As cross-examination continued by the Independent Children’s Lawyer, the following exchange occurred:[9]
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: … what you have mentioned in relation to that particular night when [the child] was conceived and also these other two occasions. So those are the – that’s the reason, as I’m understanding it, for your fear of the mother and not wanting to disclose this sort of information to her. Is that right?
[THE FATHER]: Yes. I want to protect myself. Yes.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER]: Okay. And those assaults where you – they were prior to 2012, weren’t they?
[THE FATHER]: There was also her brother as well who poured a drink on my head at the club. …
[9] Transcript 20 April 2021, p.26 lines 36 –44
Counsel for the Independent Children’s Lawyer then said:[10]
And so just in relation to your daughter, you’ve mentioned she is two years old. I don’t believe you’ve placed anywhere in your affidavit what her date of birth is or what her name is. Are they – are those details you’re not prepared to disclose either at this point?
[THE FATHER]: To the authorities, yes. But not to the mother. To the authorities, yes.
HER HONOUR: Well, I seem to be the authorities, but you’re taking no trouble to tell me anything?
[THE FATHER]: Well, if the mother wasn’t present I would.
HER HONOUR: Well, what? I get to then have a secret from the mother in your case, to do with your child?
[THE FATHER]: Look, she is two years old and she is there. If they want to allow her to meet her sister, that’s – that’s their…
[10] Transcript 20April 2021, p.27 lines 1 –14
At this point her Honour said:[11]
I’m really struggling as to whether this man needs to have a mental health assessment. This is really very bizarre, this evidence. Everything so far this afternoon has been extraordinarily bizarre. I’m really struggling to understand whether the father has some form of personality disorder or some form of mental health condition which means that he is wholly uncapable (sic) of understanding what is actually happening on his own application. He seems to be talking as though it’s not me who will be making the decision.
…
[11] Transcript 20 April 2021 p.27 lines 18–24
Her Honour then said to the father’s counsel:[12]
… [D]o you hold any concerns about your client’s mental health state and whether I should be having a psychiatric assessment done? Or whether in fact we simply proceed with the expert’s evidence that we have with this extraordinary style of evidence that I’m getting? And I know it’s a difficulty in terms of what your obligations are to your client, but is there anything that means that you’ve been concerned about your client’s mental health?
[12] Transcript 20 April 2021, p.27 lines 27 –33
Counsel for the father replied that he did not. The primary judge then turned to counsel for the Independent Children's Lawyer and said:[13]
…I’m right in thinking that there was nothing in [the Family Consultant’s] report where she was concerned with respect to the father’s mental health, so it might just be [an] incident of him being in the witness box.
[13] Transcript 20 April 2021, p.28 lines 31 –33
Counsel for the Independent Children's Lawyer confirmed that the Consultant had expressed no concerns.
The father’s reference to “murder” is explained in the primary judge’s reasons at [46] where she quoted from the father’s affidavit filed 3 September 2019 and in which he said:
31.My son [Y], was born on … 2017 and passed away on …2017. He died of neonatal sepsis, which was totally preventable. He is the brother of [X], a brother that she will never meet. My son was condemned to be born in a dirty, third-world public hospital because of the financial, legal, psychological, and emotional burden and paralysis of the estrangement of [X] imposed on our family by the [mother] and her associates. I have never met my son because I was in Australia when he was born. I was travelling overseas in July 2017 to meet him. See annexure A as evidence of the birth, death, and cause of death. My son would have survived if he was given a birth in a private, well-equipped clinic, which would have cost $20,000. We did not have the money at the time. I wanted him born in a private clinic with well-equipped surgeons. That money was stolen from us by CSA to give to the welfare and child support-rorting [mother]…
(As per the original)
Two points immediately arise. The first is that at no point was the father “threatened” with a psychiatric examination and her Honour’s comments represented her reaction to the nature of his evidence, which, having considered the transcript and the contents of the father’s affidavits, were concerns reasonably open to her. Secondly and more importantly, even if her Honour’s comments could have been construed as conveying an impression of bias, no complaint was made by counsel then appearing for the father to her honour about those remarks nor was any application for recusal made and in my view, the father cannot now raise it.
To fail to raise an objection to an asserted demonstration of apprehended bias can in some circumstances prevent it being later raised. This is such a case (see Vakauta v Kelly (1989) 167 CLR 568 at 572).
This ground is not made out.
Ground 4 Failure to afford procedural fairness
The thrust of the ground is that the primary judge failed to protect the father during his evidence. The father contends:
12. Despite the S102NA scheme invoked and the mention of domestic violence the judge still conducted the trial with the father sitting without a screen within meters facing the mother in the eyeball. The father had to answer questions in front of someone who had assaulted him several times, intimidated, harassed, taken advantage of, estranged/alienated his child from him and who the mother targeted with predatory pregnancy for the purpose of welfare and child support. …
(Father’s summary of argument filed 20 August 2021) (As per the original)
It is clear that the primary judge was aware that the father’s lawyer was provided pursuant to the family violence and cross-examination of parties scheme. No application, complaint or comment was made by the lawyer acting for the father nor by him on his own behalf. Nor did his lawyer request a screen to be placed in the courtroom. In those circumstances, the primary judge cannot be criticised for not making arrangements to suit the father.
The submission continues and the father asserts that the primary judge failed to intervene with the mother’s barrister and the Independent Children's Lawyer:
…co-ordinated their attacks on the father to provoke and denigrate him. The questions of the barrister of the Independent Children's Lawyer were long, misleading with double meanings with answers that would lead to estrangement and alientation (sic)…
(Father’s summary of argument filed 20 August 2021, paragraph 15)
The father’s lawyer made no complaint about the way in which the mother’s counsel or the Independent Children's Lawyer conducted their cross-examinations. On occasion he objected, quite properly to a question and the primary judge ruled on it. The lawyer acting for the father did not see cause to object to the questioning, and a reading of the transcript does not support the father’s allegation that he was denigrated or provoked and clearly the primary judge saw no reason to intervene, nor was there.
In reality the thrust of this ground is not a complaint about procedural fairness but that the primary judge did not accept his allegations. There is no substance in this complaint.
Ground 5 Denial of natural justice
This ground, when considered against the written argument devolves to a complaint about the outcome. The father complains that the effect of the orders is that child will not know him and contends that the judge “should have used the position assigned to her by society to help [the child] instead of imposing punishing orders on [the child]” (Father’s summary of argument filed 20 August 2021, paragraph 16).
This complaint is not made out. However before leaving this ground, it is necessary to say something about a submission made in the father’s summary of argument:
17. The trial had a pre-determined outcome since there was coordination to block subpoena material from the father by all lawyers involved. The opposing lawyers and the chambers of the judge had blocked the request of the father to meet his child in a family inclusive report before trial. The father highly suspect (sic) the Judge had the intent to deny his orders irrespective of what he says, adopt the orders of the mother, protect the mother from her actions and conduct the trial to allow provocation and denigration of the father. …
The father’s claims about the judge and her chambers staff is unsupported and, in my view, insupportable. The judge was called upon to make a difficult decision which she did in the best interests of the child. There is no basis for the assertion made by the father and it ought not to have been made.
None of these three grounds is made out.
Ground 2 Failure to properly consider the evidence and exerted discretion that favoured the mother
The father’s complaint is that despite him providing affidavits of “objective facts” being the allegations of the mother’s violence to him and to her older daughter, the primary judge “used that to deny the father contact”. The father in his summary of argument said:
5. …The judge seemed to infer in order for the father to have a relationship with his child, that he should drop the mentions of the violent behaviour of the mother? These are facts to describe the actions of the mother… Yet the judge expects the father to have positive or no views of the mother along with the 8 years of child alienation.
The primary judge found:
79. [The father’s] attitude towards [the mother] is wholly negative. He perceives himself as having been lied to and manipulated by her and that she has done a number of acts which he perceives as having been done wilfully and deliberately by her to hurt him, which has had a significant impact upon him and his family, including, importantly, the death of his baby son to the mother and her receipt of child support payments.
80. The father’s attitude towards the mother was overwhelmingly negative in the witness box, and there is nothing in any of the father’s material or his presentation in Court which would cause me to form the view that he can see that this is what his attitude is: that he can see that this attitude would be more than potentially harming to the child; it would be harming to the child. There is nothing which causes me to form the view that he has any view that he should be ameliorating that behaviour or changing his attitude, or addressing those issues. Indeed, his attitude is absolutely wholly one that the child should now be in his care to the absence of the mother, and that this is a direct consequence of all of the things that the mother has done to him.
Based on those findings, the primary judge concluded that the father will be unable to keep those negative views away from the child.
The challenge is misconceived. The primary judge did not require the father to moderate or ameliorate his views about the mother, however, quite properly her Honour’s concern was for the child’s welfare were she to be exposed to the father’s views. The finding was entirely open to her.
The ground further complains that the primary judge did not give sufficient weight to the father’s evidence that the mother had “blocked communication” with him so as to deny him access to the child. The weight or importance given to evidence is a matter quintessentially for the primary judge and unless an appellant can show that the primary judge was “plainly wrong” (see CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J). She was not. No error has been demonstrated.
Ground 3 The primary judge’s orders and decision was “plainly wrong”
The father’s submissions on this ground are in effect complaints that the primary judge’s orders were not what he had sought. It is unnecessary to consider the particulars of the submissions other than to deplore their histrionic nature. The father said in his summary of argument:
8. … However, the judge goes to the extreme of erasing the cancelling the biological father of [the child] completely from her life. To impose on her difficulty, hurdles and no chance of meeting her father. The final orders are an affront to human rights and amounts to child trafficking…
Such a submission is offensive and arrant nonsense. It also speaks clearly to the correctness of her Honour’s decision and reinforces the judgment in which her Honour says:
81.The father had no insight into any of those behaviours, and it seems to me that his behaviours have become more than being fixated on the wrongs that the mother has done but has not also become fixated on what he perceives the entire system, if I may call it that, has done wrong by him…
The primary judge said, in relation to the father’s proposed regime of supervised time leading to overnight and school holiday time;
99. The father’s position is wholly focussed on what he perceives he has missed out on; what he perceives his right to be, and if the Court is not going to give him simply the child to live with him for the next nine years, this is the most he is prepared to do to allow the child to be developing a relationship with him.
100. So I cannot find that the father is genuine in seeking a relationship with [the child]. He is determined to have the child in his care. He is determined to be allowed to have the child with him in the way that he proposes, without anybody else telling him what to do. As he says in his affidavit that I read earlier into the record, he is not interested in having to negotiate with the mother; this is simply what he wants to have happen.
101. So I cannot be satisfied that the father is genuine in seeking a relationship with [the child] and that he is committed into maintaining it. There is nothing about his proposals which would cause me to form the view that he is interested in the child per se, rather than interested in what he perceives his rights and how they have been taken away from him by the mother and the system in its entirety.
This challenge is not made out.
Ground 6 The primary judge gave inadequate reasons for her decision
A judge has an obligation to give reasons for their decision and the reasoning must be discernible to the parties and to a court considering an appeal from the decision (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24; Bennett and Bennett (1991) FLC 92-191).
The father does not agree with the primary judge’s reasons, and that is clear from his summary of argument, however, that does not mean that they are inadequate to demonstrate her Honour’s reasoning process from the evidence to the final orders. Her Honour’s reasons are clear and detailed.
This challenge is not made out.
The appeal will thus be dismissed.
Costs
Neither counsel for the mother nor the Independent Children's Lawyer sought an order for costs and no order will be made.
I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 5November 2021
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