Harshani and Darnith
[2011] FamCAFC 112
•24 May 2011
FAMILY COURT OF AUSTRALIA
| HARSHANI & DARNITH | [2011] FamCAFC 112 |
| FAMILY LAW – APPEAL - NOTICE OF APPEAL – application for leave to appeal/appeal by husband against interim parenting orders –parties self-represented – documents ill-prepared and of no assistance – during hearing before the Federal Magistrate wife raised serious allegations of violence by the husband against her and the child – Federal Magistrate careful in her treatment of the evidence – primary concern the safety and well being of the child until a formal hearing could take place – no merit in any of the grounds of appeal – oral applications by husband and wife to lead further evidence dismissed – appeal dismissed |
| Family Law Act 1975 (Cth) ss 93A(2), 94AAA(7), 68P |
| CDJ v VAJ (1998) 197 CLR 172 House and The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Harshani |
| RESPONDENT: | Ms Darnith |
| FILE NUMBER: | MLC | 1556 | of | 2010 |
| APPEAL NUMBER: | SA | 43 | of | 2010 |
| DATE DELIVERED: | 24 May 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 19 November 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 844 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | In person |
IT IS NOTED that publication of this judgment under the pseudonym Harshani & Darnith is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 43 of 2010
File Number: MLC 1556 of 2010
| Mr Harshani |
Appellant
And
| Ms Darnith |
Respondent
REASONS FOR JUDGMENT
Introduction
This is in effect an application for leave to appeal filed by the husband on
16 September 2010 against interim parenting orders made by Federal Magistrate Hughes on 10 June 2010.
I heard the application on 19 November 2010 and at that time I intended to deliver an ex tempore judgment given that the next hearing before the Federal Magistrate was listed for 6 December 2010. However, the constraints of time prevented me from doing that and accordingly I made the orders and advised the parties that I would deliver my reasons for judgment subsequently.
I confirm that on 19 November 2010 I dismissed the oral application made by the husband to lead further evidence and the oral application made by the wife to lead further evidence, and I dismissed the appeal. I now provide my reasons for these orders as follows.
The husband filed an initial Notice of Appeal on 5 July 2010, but as I said at the directions hearing that I conducted on 27 August 2010 this Notice of Appeal was quite unintelligible and deserved to be struck out as an abuse of process. The husband had also filed a draft appeal index on 21 July 2010, but that too was inadequate and inappropriate. However, the husband, who had had legal representation before the Federal Magistrate, had prepared these documents himself and he appeared in person. Thus, on 27 August 2010 I adjourned the matter to provide the husband with an opportunity to take advice and to file amended documents which could then be acted upon.
The husband filed an Amended Notice of Appeal and an amended draft appeal index on 16 September 2010. These documents were much better than the original documents, but with the Notice of Appeal there was still no formal application for leave to appeal and no facts pleaded in support of such an application. There were grounds for appeal, but they were still difficult to follow and raised issues that simply could not be dealt with on an appeal. Nevertheless I determined to allow the matter to proceed and I listed the appeal for hearing on 19 November 2010 and made orders to prepare the matter for that hearing.
On 19 October 2010 the husband filed what is described as a “summary of argument”. This document is seven pages in length but had at least 100 pages of attachments. Apart from its length there were two immediate problems with the document. Firstly, it seemed to raise new grounds of appeal and bore little resemblance in that regard to the Amended Notice of Appeal. Secondly, many of the attachments comprised “fresh evidence”. There was of course no formal application for leave to file an amended notice of appeal or to lead further evidence.
The wife filed her so called “summary of argument” on 12 November 2010, and it was readily apparent that that was prepared without any legal assistance. It was of no help whatsoever. It followed the same format as the husband’s document, namely it comprised 16 pages with over 100 pages of attachments. It comprised pages of narrative much of which had no necessary relevance to the appeal, and the attachments, like those attached to the husband’s document were a grab bag of discrete documents which had little to do with the appeal. Again, insofar as these documents comprised fresh evidence there was no formal application by the wife to lead such further evidence.
However, I received both documents, and at the hearing treated each party as making an oral application to lead further evidence.
Background
As is apparent from the Federal Magistrate’s reasons for judgment, the context of the proposed appeal was as follows:
a)The husband had applied for parenting orders in relation to the one child of the marriage, D who was born in November 2008.
b)The wife initially responded by proposing that the child spend time every second weekend with the husband for up to three months during which time she would wean the child and the child would not spend overnight with the husband.
c)The wife filed an affidavit making serious allegations of violence by the husband. At the initial hearing on 4 May 2010 the wife indicated that she was consenting to the child spending overnight time with the husband. In light of the allegations of violence though the Federal Magistrate was concerned about this and took oral evidence from the wife. In the circumstances the Federal Magistrate declined to make an order for overnight time and instead made an order that the child spend time with the husband from 9.00am to 3.00pm each Tuesday and Thursday with handovers at a Police Station. Her Honour then adjourned the proceedings to 10 June 2010, granted leave to the parties to issue subpoenas, appointed an Independent Children’s Lawyer and ordered that a Family Report be prepared.
d)Subsequently the wife filed a further affidavit raising even more serious allegations of violence by the husband both against her and the child.
e)The issue for the Federal Magistrate at the hearing on 10 June 2010 was whether to suspend the order providing for the child to spend time with the husband until a final hearing could take place and a fully informed decision made including in relation to the wife’s allegations of violence.
f)The Federal Magistrate determined to not completely suspend the orders, but to change them to make them more restrictive and put in place “extra safety provisions”. The Federal Magistrate ordered that the child spend time with the husband from 9.00am to 3.00pm on each Saturday in company with at least one of the husband’s two older children. The Federal Magistrate also accepted the recommendation of the Independent Children’s Lawyer that the parties undertake a psychiatric assessment. Her Honour then further adjourned the proceedings to 6 December 2010 when it was anticipated that the Family Report which had previously been ordered would be available.
g)The Federal Magistrate made it clear that she did not know if the wife’s allegations were true, but she had to put the safety and welfare of the child first. The Federal Magistrate concluded her reasons as follows:
23.Now, if it turns out that the father is perfectly capable of caring for the child and there are no risks, then we can move, over time, into a more “normal” regime. The allegations are of sufficient concern, especially with some the corroboration that, to my mind, in finding a balance between the potential benefit to the child of a meaningful relationship with his father and the need to protect him from harm, I have to err on the side of protecting him from harm in the short term. The order I intend to make will enable the child to continue to develop a meaningful relationship with his father, while protecting him from harm.
h)By the time the application for leave to appeal/appeal was able to be listed for hearing before me there was only a very short period of time before the adjourned hearing date before the Federal Magistrate.
Discussion
I am of the opinion that this application/appeal does not raise any question of general principle and should be dismissed. Thus I am permitted by
s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”) to provide my reasons for this decision in short form. Those reasons are as follows:
a)Although leave to appeal is required, to repeat, the husband simply has not addressed this issue. There is nothing specifically put that would allow me to find that there was an error of principle and/or that a substantial injustice has been caused. Thus, it would be appropriate to dismiss the application on that basis alone, but in the circumstances I will approach this matter on the basis of whether there is any merit in the proposed grounds of appeal, as if leave had been granted.
b)I propose to dismiss the oral applications to lead further evidence. Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In
CDJ v VAJ(1998) 197 CLR 172 the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. At paragraph 109 McHugh, Gummow and Callinan JJ said:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours then said (at paragraph 111):
111.…Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
And finally their Honours said (at paragraph 116):
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
c)In relation to the husband’s oral application I have done my best to appreciate and understand the further evidence that he seeks to present. However, it has not been demonstrated in any way how, if that further evidence was accepted, the orders under appeal are erroneous. Thus there is no basis for admitting this further evidence.
d)In relation to the wife’s oral application, given the outcome of the application/appeal, and the proposed dismissal of the husband’s oral application to lead further evidence, it is unnecessary for me to consider whether any of her further evidence should be admitted. Indeed, in any event, it is impossible to make any sense of that further evidence and its import. The wife in her oral submissions was not able to explain this to me.
e)Turning to the husband’s so called grounds of appeal and the summary of argument, despite there being no application to amend the grounds of appeal in the Notice I propose to proceed on the basis of the grounds set out in the summary of argument. Thus, addressing each ground of appeal in turn:
1. The trial court erred having discrepancies between declared order and the issued order and altering and/or constructing the transcript.
The husband clearly does not appreciate that although ex tempore reasons for judgment are transcribed they are only made available to the Federal Magistrate who then has the task of settling and publishing those reasons for judgment. There is no error here by the Federal Magistrate and thus no merit in this ground of appeal.
2.The trial court erred in altering, tampering and modifying court documents and/or allowing the others (lawyers/officers) to alter, tamper and modify court documents or not taking corrective actions once it is brought to the notice of the Court.
This is also a misconceived ground of appeal. There is a clear difference between minutes of order that are presented to the court and the orders that are ultimately made by the Federal Magistrate. There is no requirement that the orders be precisely in the terms of the minutes of order. Again, there is no error here by the Federal Magistrate and thus there is no merit in this ground of appeal
3.The trial court erred by failing to issue reasons for the order.
Once again this ground of appeal is misconceived that the complaint demonstrates a lack of understanding as to the process for publishing and distributing ex tempore judgments. There is no error here by the Federal Magistrate and thus no merit in this ground of appeal.
4.The trial court erred in reducing time the Applicant spend (sic) with his son without a valid legal reason.
This ground challenges her Honour’s reasons for making the orders. The husband complains that the trial judge did not hear any oral evidence from him despite taking oral evidence from the wife, that none of the subpoenaed materials before her Honour were “probative” in relation to the allegations of violence, that the Federal Magistrate did not critically assess the wife’s oral evidence and the materials she presented in support of her allegations, and that her Honour acted arbitrarily in making the decision to reduce the child’s time with the husband.
The first thing to note about these complaints is that most of them relate to the earlier hearing on 4 May 2010 before the Federal Magistrate and not the hearing on 10 June 2010. There is no appeal against the orders made on 4 May 2010, and thus it is not open to the husband to raise complaints in an appeal against orders made on 10 June 2010 which relate to a previous hearing. Secondly, I have carefully read the transcript of the hearing before the Federal Magistrate and her Honour’s reasons for judgment and it is not apparent that her Honour has erred in any of the ways complained of by the husband. Her Honour was careful in how she treated the evidence before her but there was only so much that she could do in an interim hearing. Her Honour’s primary concern was the safety and wellbeing of the child until a formal hearing could take place. For that her Honour cannot be criticised and thus again there is no merit in this ground of appeal.
5.The trial court erred allowing the Respondent to abuse the legal process.
In relation to this ground of appeal the husband makes allegations that are completely baseless and unjustified. It is also entirely unclear what error the Federal Magistrate is supposed to have made. The husband appears to be complaining about the wife and how she has allegedly made false statements to the court. There is no error here by the Federal Magistrate and thus no merit in this ground of appeal.
6.The trial court erred in changing the time and places and imposing conditions on Applicant’s daughters are reasonably not practical.
This ground challenges the exercise of discretion by the Federal Magistrate in making the orders that she did, but the husband has failed to establish that her Honour has acted “on a wrong principle” allowed “extraneous or irrelevant matters to guide or affect (her)”, mistaken “the facts” or failed to “take into account some material consideration” (House and The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ at 504). Thus, again no error has been demonstrated on the part of the Federal Magistrate and there is no merit in this ground of appeal.
7.The trial court erred by failing to consider cultural aspects.
This ground of appeal must also fail. It has not been demonstrated that there was any evidence before her Honour as to the “attitudes, beliefs, customs, practices and social behaviour of parties (migrants) in separating faither (sic) from his son”. In any event, given the limitations of an interim hearing her Honour had to balance the relevant factors to be taken into account and in my view her Honour correctly gave primacy to the safety and wellbeing of the child pending a final hearing.
8.The trial court erred in suppressing State jurisdiction.
The husband in effect complains that the Federal Magistrate had no regard to s 68P of the Act. He says that there was a conflict between an Intervention Order made in the Victorian Magistrates Court on
19 April 2010 and the orders made by her Honour. However, it is apparent that there is no inconsistency between that Intervention Order and the order her Honour made and that s 68P does not apply. The Intervention Order does prevent the husband from being within five metres of the child, but an exception to this is for the purpose of arrangements in accordance with a family law order. Once again there is no error by the Federal Magistrate and there is no merit in this ground of appeal.
Having found no merit in any of the grounds of appeal I confirm that the application/appeal should be dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 24 May 2011.
Associate:
Date: 24 May 2011
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