HARSHANI & DARNITH
[2019] FamCAFC 213
•18 November 2019
FAMILY COURT OF AUSTRALIA
| HARSHANI & DARNITH | [2019] FamCAFC 213 |
| FAMILY LAW – PARENTING – Where the father seeks a discharge of the Watch List Order to facilitate travel overseas by him with the parties’ child of whom the mother has sole parental responsibility – Where the father appeals the discretionary determination refusing the application – Where the father asserts that the Court did not have regard to evidence in support of his application – Where the father did not respond to the mother’s evidence and contentions at first instance – Where the father alleges that the primary judge took irrelevant and extraneous matters into account – Where matters taken into account by the primary judge were found to be relevant and unexceptional – Where the father alleges apprehended bias on the part of the primary judge – Where the father asserted that the primary judge did not permit him to cross-examine the mother but where he did not seek to do so – Where the appeal is dismissed. |
| Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Part VII Family Law Rules 2004 (Cth) r 11.02 and r 11.03 |
| Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48 |
APPELLANT: | Mr Harshani |
| RESPONDENT: | Ms Darnith |
| FILE NUMBER: | MLC | 1556 | of | 2010 |
| APPEAL NUMBER: | SOA | 16 | of | 2019 |
| DATE DELIVERED: | 18 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Watts, Tree & Bennett JJ |
| HEARING DATE: | 9 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2019 |
| LOWER COURT MNC: | [2019] FamCA 89 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The Notice of Appeal filed 18 March 2019 be dismissed.
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 Harshani & Darnith 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 16 of 2019
File Number: MLC 1556 of 2010
| Mr Harshani |
Appellant
And
| Ms Darnith |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed 18 March 2019, Mr Harshani (“the father”) appeals the Order made by the primary judge in Melbourne on 26 February 2019. His Honour dismissed the father’s application, in parenting proceedings between himself and Ms Darnith (“the mother”), for orders to enable the father to take the parties’ 10 year old son (“the child”) to Country N and Country B for a holiday during a specific period and requiring the mother to sign all documents necessary for the issue of a passport for the child.
The father seeks that the Order made on 26 February 2019 be set aside, that his application be remitted for hearing before a single judge and “[a]ny other relief as the Court may think fit.” The mother seeks that the father’s appeal be dismissed.
Before us, the father and mother were self-represented. The mother had the assistance of an interpreter. Each party was invited to elaborate or emphasise the outline of his/her case. The father did so at length. The mother was brief. By paragraphs 45 and 46 of the mother’s Summary of Argument filed 30 July 2019, the mother sought orders which she conceded are not within the appellate jurisdiction of the Court and we regard those applications as having been withdrawn by the mother.
For the following reasons, we find that there is no merit in any of the father’s grounds of appeal and his Notice to Appeal will be dismissed.
Documents not included in the appeal book
The father’s Summary of Argument filed 8 July 2019 referred to documents outside the index of documents in the Appeal Book and included an assertion that the Appeals Registrar had failed to include in the index some documents which the father says should have been included. Procedural orders made by the Appeals Registrar on 7 May 2019 also provided for a liberty to apply for directions. Practice Direction No. 1 of 2017 was annexed to the directions made by the Appeals Registrar. Paragraph 6.1 of that Practice Direction sets out the procedure involved in an application for leave to adduce further evidence. Neither party made a further application to the Registrar for directions to amend the index nor made an application in the appeal.
The directions made on 7 May 2019 also provided, inter alia, that “the [father]… obtain electronic transcript … in accordance with the attached settled appeal index”. The attached appeal index referred to the transcript of 21 February 2019. The father did not obtain a full transcript of the hearing on 21 February 2019. We raised with the father that we did not have the transcript for the part of the proceedings relevant to Ground 5 of his Notice of Appeal, namely, when the primary judge granted the mother permission to rely on her Response to an Application in a Case and an affidavit which were filed and served three days (including a weekend) out of time. The father informed us it was not necessary for his purposes to provide the transcript for the entire hearing before the primary judge. In particular, he said, “I have decided what transcript is necessary to run the appeal.” The father’s position does not allow us to know what occurred at the hearing to contextualise the father’s grounds of appeal. However, as the mother made no complaint before us, we accepted that the father’s reference to the proceedings would be confined to the parts of the proceedings before Cronin J for which he has obtained transcript.
Background
We set out some background in order to give context to the appeal.
On 23 November 2008, the parties’ child, who is now 10 years of age, was born.
The parties have been in litigation in the Family Court of Australia since 2010. Final parenting orders were made by Macmillan J on 25 July 2016 by consent, with the exception of Order 12. The Orders provide that the mother have sole parental responsibility for the child, subject to an obligation that she advise the father of any major long term issues, invite the father to express his views about the issues and take any views of the father into account. It was ordered that the child live with the mother and spend time with the father on each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday and for periods during school holidays. Order 11 provided:
11.Each of the father and mother be and are hereby restrained from instituting any further proceedings without first having filed an application in a case (such application not be served upon the other party) seeking leave to institute proceedings together with an affidavit setting out:
(a)the occasions on which the applicant has previously sought leave; and
(b) disclosing all relevant facts about the application whether supporting or adverse to the application which are known to the applicant.
Order 12 provided that, until further order, the father and mother, their servants and/or agents, be restrained from removing the child from Australia and that the child be placed on the Airport Watch List until further order of the Court. This Order, as opposed to the other orders of that day, does not appear to have been made by consent.
The final parenting orders recite that the parents appeared in person on 25 July 2016 and that counsel appeared for the Independent Children’s Lawyer (“ICL”). The aforementioned provisions of the orders remain in full force and effect. The ICL has long since been discharged and plays no part in this appeal.
Given the terms of Order 11, the father filed an Application in a Case on 21 September 2018 seeking leave to bring an application to vary Order 12 so that he could take the child out of Australia to Country B and Country N. That application for leave to institute these proceedings came before Johns J on 14 November 2018 and was heard without the need for the mother to be present. The father was self-represented. Her Honour reserved her decision which was delivered on 21 November 2018. Johns J granted leave in the following terms:
1. That the father have leave to file an Application in a Case seeking orders that:
(a) The mother sign all documents necessary for the issue of a passport in the name of the child; and
(b) The father be permitted to travel with the child to [Country B] and [Country N] during the 2018/2019 long summer school holiday period.
On 5 December 2018, the father filed an Application in a Case seeking the orders in respect of which Johns J had granted leave for an application to be brought. That application came before Macmillan J on 18 December 2018. The father and the mother appeared in person. Macmillan J adjourned the father’s application to 21 February 2019 and ordered service of the father’s Application in a Case on the mother by registered post. Her Honour also ordered that:
a)The father file and serve any further affidavit evidence upon which he sought to rely upon by 11 January 2019;
b)The mother file and serve any Response by 1 February 2019; and
c)The father file and serve any Reply to the mother’s material by 15 February 2019.
Macmillan J’s orders made no reference to the fact that the 2018/2019 long summer school holiday period specified in the father’s application was about to commence and would be concluded by the date to which the father’s application was being adjourned.
The father filed a further affidavit on 10 January 2019 but according to the mother’s evidence, it was not served until 14 January 2019 (that is, three days late). The father did not dispute this in his affidavit in reply but did dispute it before us. The mother’s Response was not filed until Monday 4 February 2019, that is, three days late. Her affidavit was sworn or affirmed on 1 February 2019 but was also not filed until 4 February 2019. The Response and affidavit were served on the father on 4 February 2019.
The mother’s Response sought that the father’s Application in a Case be dismissed or adjourned pending the outcome of various investigations. The mother’s Response contains a list of observations or grievances rather than a document giving full particulars of orders sought. In the first paragraph of the mother’s Response, the mother observed that the father had obtained leave from Johns J to seek overseas travel during the 2018/2019 long summer vacation, which was already concluded. In the second paragraph of her Response, the mother correctly identified that Order 12, frequently referred to as a restraint against travel and a Watch List Order, was an impediment to the child leaving Australia and the father had not specifically sought to vary, discharge or suspend that provision. In the third and fourth paragraphs, the mother alleges fraudulent misconduct by the father in the final parenting proceedings before Macmillan J in 2016. The fifth paragraph includes a request for an investigation into the father’s activities as a migration agent and the purpose of overseas money transactions allegedly undertaken by him. The sixth paragraph relates to the immigration status of the father and his wife. Paragraphs seven and nine require details of the father’s finances and family members in Country N and Country B, being the father’s proposed destinations with the child, and asks for details to verify the identity of the child’s paternal grandmother. Paragraph eight reads “Dismissed the application or adjourned the case until make available of all the court documents to the mother as per the orders 2 and 3 made on 18 December 2018 (As per original).” Those references relate to the service of the father’s documents on her and the father’s further affidavit material. Paragraph ten of the mother’s Response to an Application in a Case sought to “[i]ssue an order to subpoena of recent medical records of applicant father to see any health risks of the father which can affect the child not return to Australia (As per original).”
On 21 February 2019, the father’s substantive Application in a Case came before the primary judge in the Judicial Duty List. The parties were again self-represented and the mother had an interpreter. His Honour determined a number of preliminary issues to which we will refer later in the context of the father’s grounds of appeal. At this stage, it is sufficient to record that it appears that his Honour:
a)Treated the father’s application in relation to the child’s passport as seeking orders that the mother sign all documents necessary for the issue of a passport in the name of the child;
b)Permitted the father to proceed on the basis that he was applying for permission to take the child to Country N and Country B in the forthcoming long summer school vacation of 2019/2020, rather than the vacation of 2018/2019, for which Johns J had given the father leave to proceed;
c)Permitted the father to amend his application to seek a discharge of Order 12, being the mutual restraint against travel and a Watch List order, in the face of the mother’s submission that the child should not be able to travel out of Australia until he was eligible to do so without parental consent; and
d)Permitted the mother to rely on her Response to an Application in a Case and her 21 page affidavit both filed and served out of time on 4 February 2019 over the father’s objection that she do so.
On 21 February 2019, the primary judge reserved his decision.
The decision was delivered on 26 February 2019 and his Honour dismissed both the father’s Application and the mother’s Response with the effect that the father cannot travel outside Australia with the child and that the Australian Federal Police will maintain the child’s name on the Airport Watch List at all international departure points in airports across Australia. It is from that Order that the father now appeals.
Primary judge’s reasons for decision
The primary judge referred to the extensive history of litigation dating from 2010 resting with the father obtaining leave from Johns J to initiate these proceedings. His Honour identified the documents which were filed by each party in the substantive proceedings.
At [11] to [20], in his Honour’s Reasons for Judgment (“the Reasons”) the primary judge described the evidence and proceedings before him as follows:
11.The father initially took exception to the late filing [of the mother’s affidavit filed and served 4 February 2019] but having regard to the relatively short period of time involved and the lack of any prejudice to the [father], I granted the [mother] permission to rely on her response and affidavit nuc pro tunc.
12.Importantly, in the mother’s affidavit filed 4 February 2019 she made serious allegations against the [father]. The [father] is a legal practitioner. Allegations of the nature made by the [mother] must therefore be treated seriously. I turn below to those allegations.
13.It is disconcerting that on 15 February 2019, the [father] filed an affidavit and in doing so, acknowledged that the [mother] had sent him her affidavits. Apart from complaining about the fact that they were late, he said:
None of the above affidavits addressed the real issue relevant the application (sic) I made on behalf of the [child] and both affidavits contain irrelevant and frivolous and/or vexatious statement.
14.Whatever experience and understanding the [father] has of litigation, and one would expect him to have some even by virtue of the fact that he is an experienced litigant in this court, it is curious that there was no specific denial of the allegations. His argument was that they were irrelevant and frivolous and/or vexatious. I do not know however whether there is an alternate explanation for any of the allegations as the [father] did not address those matters.
15.When the hearing before me began, the [father] acknowledged that his application was no longer applicable because the 2018/2019 long summer holidays had already passed. He asked permission to alter that to read 2019/2020 long summer holidays. He also sought to clarify his order in relation to the passport for [the child] acknowledging that as the [mother] had sole parental responsibility under the orders of 2017, the appropriate order was to direct the [mother] to seek a passport for [the child]. This court does not direct the relevant Minister under the Australian Passports Act to issue passports.
16.Even if the proposed orders of the [father] were made, paragraph [12] of the 2016 orders would not permit [the child] to leave Australia and whilst the [father] had some difficulty grasping that, he acknowledged that what he was seeking was a permanent discharge of the Airport Watch Order.
17.The [mother’s Response to an Application in a Case filed 4 February 2019] was not much short of a stream of consciousness contained in ten paragraphs the nub of which was that she sought that the [father]’s application be simply dismissed. She opposed any alteration, temporary or permanently, of the Airport Watch injunctive order.
18.With those understandings clear to both parties, and in a busy duty list I heard the matter on submissions. Neither party sought to lead any further evidence and neither party proposed that there be cross-examination of the other. Whilst matters in the duty list normally do not contain a right of cross-examination, in some cases, matters can only be determined after the evidence is tested. Here, the issue was relevantly simple and I approach it on the basis of reading the relevant paragraphs of the affidavits and hearing submissions from each party.
19.The [father’s] evidence was contained in two affidavits. In respect of the first, he said that he was a registered legal practitioner and migration agent and was presently a full-time PhD student a task which he intended finishing in 2021. He said these matters (that is, his profession) “may be enough” for the court to see his Australian links. He said he intended to travel overseas with [the child] during the long summer holidays, the cost being arranged by his relatives in [Country B]. He said there would be no cost for the [mother] or for himself and “it is entirely for the benefit of the child”.
20.Apart from a denial (if that is what it was) of the [mother’s] assertion, there was no further evidence.
The primary judge records that he pressed the father for an explanation as to why there was a mutual restraint on the parents taking the child out of Australia “until further order” which his Honour described as an “indefinite period”. His Honour described being “not at all comfortable about the [father’s] explanation” that the restraint against travel and the Watch List order “was directed to the conduct of the [mother] but that [the father] had settled the matter as a compromise (at [21]).”
His Honour noted at [22]:
… that the relationship between these parties was so bad that for whatever reason, they agreed in 2016 that the [mother]… would have sole parental responsibility for major long term decisions relating to [the child’s] care. Whilst the 2016 orders provided for extensive time between the [father] and [the child], there is no explanation in the affidavits as to why the [mother] was given that responsibility in circumstances where the [father] had what might be described as normal and significant time with [the child].
His Honour observed at [23], that the parenting orders “create the foundation of concern for the Court both as to whether the international travel application should be made even for a holiday period but also more significantly, on a permanent basis.” His Honour referred to the mother’s affidavit as “a stream of consciousness” which he then summarises at [24] to [28] of the Reasons. We refer later to the mother’s allegations in more detail.
His Honour referred to authorities including Gin and Hing [2010] FamCA 617, Lorde and Chu [2015] FamCAFC 3, Line and Line (1997) FLC 92-729 and legislation for relevant principles. We note that there is no challenge to the principles that the primary judge applied.
The primary judge considered the father’s ties to Australia and concluded that he had little understanding of the father’s ties with Australia (at [40]).
At [41], the primary judge said, in relation to the mother’s concerns:
… about the [father’s] possible motives not to return, I am unsure in the absence of evidence from the [father] why all of the money asserted by the [mother] sent to [Country B]. Whilst wild assertions are not uncommon in many court cases and particularly concerning where the evidence cannot be tested, the unusual feature of this case is that there appears to have been a child support investigation into the [father]. If there was not and the allegations are just that or indeed wildly exaggerated, why did the [father] not respond not just with a denial but with cogent evidence as to how all of these matters had occurred.
His Honour noted that the father stated that his family resides in Country B. His Honour observed that at [43]:
[The father’s] whole explanation is that he wants to travel internationally for family purposes so that [the child] can benefit. Why then, one must ask, is there no reference to what he is intending to do in [Country N]?
At [45], the primary judge concluded:
When all of the factors are taken into account, the determination must be made on the balance of probabilities and whilst the [father] dismisses the assertions and allegations of the [mother] as being vexatious, they remain unanswered. The leap of faith to which I earlier referred is too great in this case absent proper material. The unanswered questions about the need for a permanent travel injunction adds to the intrigue. The logic behind the [father] conceding sole parental responsibility to the [mother] in 2016, must mean that the court cannot ignore not only the responsibilities of the [mother] as a parent but also her wishes.
Grounds of the appeal
The father’s Notice of Appeal recites eight grounds of appeal that we will deal with in turn below.
The nature of the appeal
In this case, the relevant principles governing interference by an appellate court with the exercise of a discretionary judgment are those expressed in House v The King (1936) 55 CLR 499 (“House v The King”). For appellate intervention to be warranted it must appear that some error has been made by the primary judge in the exercise of his or her discretion. In particular, at 505:
[I]f the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … It may not appear how the primary judge has reached the result embodied in his order, but, if upon the fact that is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
An order is discretionary when it depends on the application by the Court of a very general standard. This assessment is made with regard to the circumstances of the case and factors outlined in the legislation and call for a value judgment, of which, reasonable minds differ. For this reason, no particular opinion is uniquely correct (Norbis v Norbis (1986) 161 CLR 513 (“Norbis”)).
A different view by an appellate court only as to matters of weight will not justify a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519). In this case, there was no challenge to the primary judge’s application of legal principles or to his Honour’s interpretation of the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) by which the father’s application was determined.
In addition to an assertion that the primary judge gave insufficient weight to the father’s evidence, the father’s grounds of appeal complain that the primary judge had not accorded procedural fairness to him and his Honour’s conduct gives rise to an apprehension of bias against the father.
However, when the Notice of Appeal is read in conjunction with his Honour’s Reasons, the extract of the transcript upon which the father relies and the father’s Summary of Argument, it is apparent that the grounds of appeal misstate to a considerable degree what transpired at first instance, as well as his Honour’s reasoning. There were challenges on appeal which were not the subject of applications or submissions before the primary judge, namely, the inability of the father to cross-examine the mother, the absence of an adjournment of the proceedings to permit the father to file more evidence and a complaint that his Honour did not recuse himself on the basis of bias. Because the father did not raise these issues at first instance, the issues did not form part of his Honour’s reasoning process and were not the subject of any judicial determination or ruling by him. As was observed, per curium, in Metwally v University of Wollongong (1985) 60 ALR 68 at 71:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case has been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
The complaints the father makes in his Grounds of Appeal and elaborated upon in his Summary of Argument and oral submissions are not grounds for appellate intervention.
We will now deal with each ground of appeal.
Grounds 1 and 2 – Natural justice and testing of evidence
The first ground is that:
The trial judge erred when he denied the [father]’s right to natural justice as his Honour failed to consider evidence vital to the case and disallowed the [father] to test the evidence of the [mother] by way of cross-examination.
The second ground also relates to procedural fairness, it states:
The trial judge's decision was plainly unreasonable and unjust as his Honour failed to allow the [father] to put forth evidence and test the evidence of the [father] which would thus render his Honour's findings null and void ab initio.
The father relies on Allesch v Maunz (2000) 203 CLR 172 as authority for the proposition that, as an affected party, he should have been given the opportunity to present information and make submissions before a decision was made. The father also relied on Stead v State Government Insurance Commission (1986) 161 CLR 141 as authority for it being open for a retrial to be ordered, if natural justice denied him the chance to make submissions about issues of fact.
Relevantly for the first ground, the father contends in his Summary of Argument that he was prevented from prosecuting his case in two respects. First, by not having an opportunity to adduce “evidence vital to the case”. Second, by not being able to challenge the mother’s evidence in cross-examination.
Contrary to the father’s submission, it is apparent that he had a number of opportunities to adduce evidence in support of his case. First, when he filed his application seeking leave to file an application initiating proceedings, for the purpose of making out a prima facie case before Johns J. Second, when he filed his substantive application, by way of an Application in a Case on 5 December 2018. Third, on or before 11 January 2019, when he could have filed further evidence as Macmillan J ordered on 18 December 2018. Fourth, on or before 15 February 2019, as a reply to the mother’s evidence, also as ordered by Macmillan J on 18 December 2018.
To the extent that the mother did not serve her Response to an Application in a Case and supporting evidence on the father until 4 February 2019, the father still had 11 days after service in which to respond to the mother’s evidence (by 15 February 2019). Indeed, he filed an affidavit on 10 January 2018, in which he appears to have turned his mind to the adequacy of his evidence about his ongoing connection with Australia. At paragraph 5, the father deposed, inter alia, “I believe, this explanation may be enough for her Honour to see my Australian links.” In his further affidavit filed 15 February 2019, the father asserts that the mother’s affidavit is irrelevant, frivolous and vexatious. However, he does not specifically deny various matters raised by the mother in her affidavit.
The father did not seek leave to file any further evidence in the interregnum between 15 February 2019 and the hearing before the primary judge on 21 February 2019.
The father asserts that he was not allowed to answer the serious allegations made by the mother. The transcript contains the following discussion:
HIS HONOUR: But the point I’m making is, some pretty serious allegations have been made against you by [the mother] in her affidavit and you say you don’t want to be critical of anybody and going back into the past.
[THE FATHER]: No - - -
HIS HONOUR: She’s not going back into the past. She’s saying the current position is - - -
[THE FATHER]: Yes. .....
HIS HONOUR: You’ve read what she says. She talks about black money and businesses overseas and all sorts of things.
[THE FATHER]: And if she can prove it, yes. If not, I’m going to take criminal action against her. Because a very serious thing I would like to mention in this particular part, that it – the applicant cannot prove this thing. And it is a serious allegation. That is why I say this is about ..... going into ..... and since your Honour asked me, I’m saying that none of the ..... and I made it on behalf of [the child]. Both the applicant and the other one; frivolous and vexatious statement. That is, your Honour, to be deciding. I am ready to do that. I can stop all these things and I go along that path .....
HIS HONOUR: Hang on … before you get too excited. What you don’t say is that it’s untrue. What you say is it’s not – none of the affidavits address the real issue relevant to the application. And you say what she’s doing is vexatious and frivolous and so forth.
[THE FATHER]: Yes.
HIS HONOUR: Where’s the denial?
[THE FATHER]: You’re asking a highly technical question, what is not there - - -
HIS HONOUR: I’m not asking a technical question at all. I’m saying; serious allegations, which you say, presumably, are not only defamatory but criminally defamatory - - -
[THE FATHER]: In other words – yes.
HIS HONOUR: And you say they’re irrelevant, frivolous, vexatious. What she says is; of all these things, don’t trust him because he might not bring [the child] back from - - -
[THE FATHER]: You see? Nothing, no proof, no anything.
HIS HONOUR: No proof. No. Okay.
[THE FATHER]: That’s what ..... to me. If your Honour decide on that, then I will ..... another full hearing on this matter.
(Transcript 21 February 2019, page 7, line 29 to page 8, line 32)
It emerges from the above extract, consistent with the father’s conduct of his case during the balance of the proceedings for which we have transcript, that the father was not prepared to engage with the substance of any of the mother’s allegations, particularly, involving overseas business activities and movement of funds overseas, to discuss his itinerary or what security he could provide to assuage the mother’s fundamental concern, namely, that there is an unacceptable risk that the father will not return the child to Australia if he is permitted to remove the child from Australia.
The father relied on a later part of the proceedings during which his Honour referred to the mother’s allegation that the father is not trustworthy as he is “involved in the black market and all those sort of things” (Transcript 21 February 2019, page 10, lines 12 – 13). Notably, this allegation was not made for the first time in the hearing before the primary judge. It was made in the mother’s documents filed and served on 4 February 2019. The primary judge suggested to the mother that the father says there is no proof of that allegation before saying to the father who seems to have attempted to interject: “No. [The father], you’ve got to stay quiet. You’ve had your chance. I gave you plenty of opportunity” (Transcript 21 February 2019, page 10, lines 17 – 19). At this point, his Honour had already heard the father’s submissions and an exchange had occurred, which is transcribed one page before the quote upon which the father relies, in which his Honour asked:
HIS HONOUR: Okay. All right. Is there anything else you want to add?
[THE FATHER]: If – no, it’s nothing. It’s simply I just put an application. It’s up to your Honour to decide.
(Transcript 21 February 2019, page 9, lines 18 - 22)
Before us, the father claimed that he had asked the primary judge for an adjournment so that he could have an opportunity to adduce further evidence. However, the father was unable to take us to any part of the transcript at which he made anything approximating an application for an adjournment, or described what further evidence he wanted to adduce.
The father submitted that his Honour’s decision to hear the matter on submissions due to the “busy duty list” (at [18]) and that the description by the primary judge that the “issue was relevantly simple” (at [18]) in spite of the mother’s “serious allegations” against him (at [12]), combined to deny the father natural justice. The father did not review the decision of the Registrar to allocate this matter to a Judicial Duty List. The transcribed proceedings do not disclose any request by the father for an alternative listing.
The father states, in this ground of appeal, that the primary judge “disallowed the [father] to test the evidence of the [mother] by way of cross-examination”. We gave the father an extended opportunity to locate and refer us to the part of the transcript that recorded his request to cross-examine the mother expressed in those words or less formally. Ultimately, the father conceded that he had not sought to cross-examine the mother. The father submitted that it was incumbent on his Honour to exercise “inherent powers” to suggest that there be cross-examination, notwithstanding, that the father did not request it. We do not accept that submission. The usual procedure in the Judicial Duty List is to not have cross-examination, but that is a procedure that can be departed from in appropriate circumstances. Given the lack of response to the mother’s allegations, we do not accept it was necessary for the primary judge to suggest to the father that the mother be cross-examined.
We are satisfied that there is no merit to the father’s first and second grounds of appeal.
Ground 3 – Bias
The third ground states:
The trial judge was biased in arriving at his decision as his Honour favoured the [mother] not referring to important pieces of evidence presented by the [father] and tried to find a strain between himself and the [father] since 2016. Furthermore, the decision of the Registrar to place the matter with his Honour is an adjusted and perfectly calculated victimisation attempt by the Registrar and the organs of the court against the [father].
The father refers to Johnson & Johnson (2000) 201 CLR 488 which provides the test for apprehended bias at [11]:
… is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
The father asserted that the primary judge had not referred to evidence that he had presented. At [19], his Honour clearly set out what is in the father’s first affidavit (which is very short), specifically paragraph 5. Having been given a number of opportunities to do so, the father was unable to refer to any evidence that he had presented that had not been referred to by the primary judge in his Reasons.
The father contends at page 4 of his Summary of Argument that “that his Honour made personal attacks unto the person of the [father] to the point of condescension (As per original).” We have read the transcript and do not identify a condescending or patronising attitude on the part of the primary judge.
Also at page 4 of the father’s Summary of Argument, he states:
… his Honour further at page 6 and page 7 of the Transcript made jabs at the [father] for not being able to provide him with authorities on the spot. The [father] submits that he had offered to provide the authorities in due time however this was out rightly [sic] disallowed by his Honour on the basis that the [father] is a lawyer and has a Ph.D. At the exact moment when his Honour brought the above matter up, he further recalled and reminded the [father] of a matter he had with the [father] eight to six years ago whereby the [father]’s oral application to dismiss his Honour as a judge was dismissed (“Bias Application”). The fact that his Honour recalled and mentioned his matter that with the [father] could not be clearer evidence that he thought of the [father]’s application to remove his [sic] as a judge. The cold treatment his Honour reserved for the [father] is in stark contrast to that which he offered the [mother] whereby he referred and treated her frivolous and vexatious affidavit at paragraph 23 [of the Reasons] as ‘a stream of consciousness but perhaps that is understandable having regard to the fact that she is not a lawyer.
The father continues at page 5 of his Summary of Argument:
… any fair-minded lay observer could feel the piercing tension and sharp remarks his Honour reserved for the [father]. In this regard and in reliance to the abovementioned authority, the [father] contends that there is a clear bias by his Honour. The fact that his Honour brought up the matter he had the [father] several years back is a clear indication that he has issues as against the [father]. The [father] further submits that the Registrar in placing the [father]'s matter before his Honour also played a role to victimise the [father] and deny him his right to a fair hearing.
The father, during oral submissions, inferred that the primary judge knew that he had previously dismissed an application by the father that he disqualify himself. The relevant passage is:
HIS HONOUR: … As I understand, the nullity application has been determined by the court, hasn’t it, so ‑ ‑ ‑
[THE MOTHER]: Your Honour determined this.
HIS HONOUR: Did I? Well, that was unfortunate.
(Transcript 21 February 2019, page 9, lines 41 - 46)
The issue was not raised by his Honour, it was raised by the mother. His Honour on the face of it had no memory of having made a decree of nullity in the matter.
Further, the transcript records the following exchange between the primary judge and the father:
HIS HONOUR: Okay. The final question before I ask you to sit down is, are there any legal authorities or sections in the Family Law Act you want me to look at to guide me as to how I determine your application?
[THE FATHER]: At a glance I can’t, your Honour. If your Honour give me some time and I will bring my items.
HIS HONOUR: Well, no, you’ve had plenty of time to do that and I know you’re a lawyer. You’re not only a lawyer, but - - -
[THE FATHER]: Yes, your Honour, not in Family but in a different – different..... I have some knowledge on Family Law.
HIS HONOUR: I even read somewhere you had a PhD.
[THE FATHER]: I have a PhD and I am doing my second PhD, your Honour.
HIS HONOUR: Okay. So you know how courts run and a fair indication of how complicated this legislation is, that this file has 260 documents on it. And the court cases in this case have been going since what, 2009, 2010? In fact, didn’t I have some dealings with it about eight – six years ago?
[THE FATHER]: Yes. Yes, yes, yes, yes.
HIS HONOUR: All right.
[THE FATHER]: I had, your Honour.
HIS HONOUR: So to come here and tell me, “I don’t have any authorities,” seems to me to be a bit odd.
[THE FATHER]: At a glance I can’t. Only if your Honour gives some time, yes, I - - -
HIS HONOUR: Okay. Is there anything else you want to say … ?
[THE FATHER]: No, I’m not going to say that if your Honour decide it’s not appropriate for him today. Then I need to look at – then simply I’m saying it’s not to attack anybody or not to attack the mother or anything ..... I just simply want my son to have international travel and have some relationship with my parents. That’s simple – have that and I’m not going to give any burden to - - -
HIS HONOUR: I understand you’re repeating yourself … and I don’t want to waste your time or mine.
(Transcript 21 February 2019, page 6, line 29 to page 7, line 25)
There are a number of points to be made. First, the father did not make any application before the primary judge for his Honour to recuse himself. The father did not suggest to the primary judge that he should, of his own volition, consider recusing himself. The father did not even suggest that the proceedings would be better heard by another judge. There was no disqualification issue to which the primary judge was required to give consideration or rule. Second, the transcript does not disclose any reference to the father’s previous application for the primary judge’s disqualification. Nor is there any basis on which to allege, as the father does, that his Honour recalled the previous application of the father for disqualification. Third, our reading of the transcript does not reveal “the piercing tension and sharp remarks” or “jabs” of which the father complains. Fourth, insofar as the father was not able to cite legal authorities, none of the father’s grounds of appeal are directed to the primary judge’s application of the law to the facts of the case.
The father asserts that a Registrar acted improperly in allocating this case to his Honour for hearing on 21 February 2019 and, in doing so, victimised the father. Our consideration of this aspect of this ground is necessarily limited. As indicated, the father took no steps to have the Appeal Book resettled to include evidence of his dealings with the Registrar. The father conceded that he did not review the Registrar’s decision. Furthermore, the father did not raise any issue about the Registrar’s exercise of power with the primary judge at the commencement of the hearing before him, or at any time thereafter.
The father points to the transcript where his Honour asks the father why Macmillan J did not deal with the application when it was listed before her on 18 December 2018 (Transcript 21 February 2019, page 4, line 14 to page 6, line 27). His Honour proceeded to query why the father had not put on relevant evidence when Macmillan J had provided him with an opportunity to do so by 11 January 2019. These were merely observations by his Honour. His Honour did not find that the mother’s version of what occurred before Macmillan J on 18 December 2019 was more credible than what the father said transpired on that day. Each party alleged that Macmillan J had identified different deficiencies in the father’s affidavit evidence. Ultimately, his Honour found that the evidence which the father had placed before the Court, even after the father had filed further affidavit evidence, fell conspicuously short of evidence upon which the Court could be satisfied that the father’s application should be granted.
There is no basis on the material before us to support the assertions made relating to bias in respect of a prior disqualification application or otherwise. We find that there is no foundation to Ground 3.
Ground 4 – Weight given to evidence
The fourth ground states:
The trial judge failed to take into account material consideration when his Honour gave too little weight in deciding the inference to be drawn from the evidence brought forward by the [father].
The father argues that too little weight was placed on his evidence. The father referred to his Honour’s Reasons which he says elaborated more on the mother’s affidavit evidence than his affidavit evidence. However, since the father’s affidavit evidence was significantly shorter than the affidavit evidence of the mother, it is therefore understandable that his Honour’s summary of the father’s evidence was shorter.
The father asserted that the primary judge had not referred to some evidence that he had presented. As we mentioned earlier, at [19] of the Reasons, his Honour sets out what is in the father’s first affidavit and having been given a number of opportunities to do so, the father was unable to refer to any evidence that he had presented that had not been referred to by the primary judge.
The father has not demonstrated that his Honour erred in the sense required by House v The King and Norbis, both of which are discussed above. The primary judge weighed the limited evidence of the father against the mother’s allegations. It is apparent that the primary judge did not necessarily accept all of the mother’s evidence in support of her allegations. Rather, it appears that his Honour was unpersuaded by the totality of father’s evidence that it would be in the child’s best interests to be able to travel with the father, contrary to the wishes of the mother, who has sole parental responsibility, and who held a belief that, if the father was permitted to remove the child from Australia, the child would not be returned.
There is no merit in Ground 4.
Ground 5 – Consideration of prejudicial evidence
The fifth grounds states:
The learned trial judge took into account evidence of a highly prejudicial nature when his Honour accepted the [mother]’s affidavit nunc pro tunc even though it was filed three days after the deadline and also by accepting untested hearsay evidence from the [mother] and in His Honour doing so it rendered his findings to be null and void ab initio.
As referred to earlier, this ground involves part of the proceedings before the primary judge for which the father did not provide transcript, so our observations of what transpired are, therefore, somewhat inferential.
This is a child-related proceeding to which the relaxed evidentiary provisions of Sub-Division B, Division 12A of Part VII of the Act would apply. Absent a ruling under s 69ZT(3) of the Act, certain rules of evidence, including the rule against hearsay, do not apply. We do not have transcript for any part of the hearing at which the father made his objections to the mother’s affidavit. We do not know if his Honour was asked to rule on objections, but if he did so, we infer any objection was unsuccessful as there is no reference to parts of the mother’s material having been struck out.
At [11] of the Reasons, the primary judge recited that he had granted the mother permission to rely on her Response to an Application in a Case and her affidavit “nuc pro tunc” (i.e. retrospectively) so that it could be treated as if it had been filed within time. Without that permission, the operation of r 11.02 of the Family Law Rules 2004 (Cth) (“the Rules”) would have rendered the mother’s late filed documents “of no effect”. Permission can be granted under r 11.03 of the Rules and the primary judge correctly allowed the mother to rely upon her affidavit. There was no indication in the affidavit filed by the father before 15 February 2019 that he lacked sufficient time to respond to the mother’s evidence. Neither the father’s affidavit nor the transcript of proceedings upon which he relies demonstrate that the father suffered prejudice by the mother being three days late in the filing of her affidavit.
The father argues at page 6 of his Summary of Argument that the three days provided “extra benefit” to the mother, that the mother gave no explanation for the delay and that the father has suffered prejudice as the affidavit was “frivolous and vexatious” and “bare and merely filled with allegations unsubstantiated by evidence”.
The father did not produce transcript of the proceedings before the primary judge in which he articulated what extra benefit the mother obtained by filing her documents three days late. The primary judge identified that two of the three days were a weekend. Given that the father still had 11 days in which to respond to the mother’s affidavit and did, in fact, file an affidavit in response, we cannot identify relevant prejudice. Of course, prejudice does not refer to the prejudice suffered by virtue of being required to respond to an allegation. Prejudice pertains to timeliness and the extent (if any) to which the innocent party is disadvantaged by a shorter timeline or some other curtailment on their ability to respond arising out of delay by the other party. A balance must be struck between the prejudice to the mother of not permitting her to rely on material filed and served on Monday 4 February 2019 instead of on Friday 1 February 2019, and the prejudice to the father of the late service. The father did not take us to transcript of the proceedings, or any documents in evidence before his Honour, which demonstrates that he suffered any prejudice in the relevant sense.
Allegations apparent from the mother’s Response to an Application in a Case and the affidavit in support include the father’s irregular financial dealings overseas with "black money” whilst being in litigation with, or under investigation, by the Child Support Agency. This could, presumably, be probative of the father’s ongoing connection with Australia and the motivation (or lack thereof) for him to return to Australia. The mother raises doubts about the identity of the paternal grandmother whom the father wants the child to visit as well as the need or desirability for the child to visit Country N at all. The mother’s affidavit also refers to allegations she made against the father before Hughes FM (as she then was) in 2012, including the father’s attempt to get the mother to sign a passport application in respect of the child at the end of 2009. The mother alleged that the father used family violence in this attempt and expressed an intention to sell the child (then 7 months old) in Country B. The father denied he had attempted to get the mother to sign a passport application. Based upon documents tendered, Hughes FM found that the father had tried to get the mother to sign the passport application and the fact that he had denied he had done so increased the likelihood that the mother was telling the truth about the alarming circumstances the mother alleged had surrounded this attempt.
It was, with respect, a somewhat cavalier approach by the father to be dismissive of the mother’s concerns as the parent with sole parental responsibility in relation to the child. The consequence of the father choosing not to address the mother’s concerns or respond to her evidence, such as it was, is that his Honour had little or no material upon which to rely.
The father has not successfully identified any example which the primary judge impermissibly took account of the mother’s evidence or drew an inference from the evidence which was not open to his Honour. Insofar as the father attacks inferences allegedly drawn by his Honour, the inferences seem to be confined to what Macmillan J had said at the procedural directions hearing in terms of the filing of evidence. The primary judge had the mother’s evidence as to what Macmillan J said. Notwithstanding what the father might have otherwise asserted to the primary judge in submissions, the father did not challenge in his sworn evidence what the mother had said in his affidavit in reply. It was open for the primary judge to draw the inferences that he did, based on the mother’s sworn evidence. Macmillan J assessed that it was appropriate to give the father a further opportunity to file evidence. Other inferences challenged were that the final parenting orders made in 2016, whereby the mother had sole parental responsibility for the child, were based on the relationship between the parents being “bad (at [22])”, “poor” and “untrusting of the other (at [23])” and that the primary judge assumed that the father had chosen not to engage with the mother’s allegations against him. These inferences were open to the primary judge.
We conclude that Ground 5 has no merit.
Ground 6 – Decision is inconsistent with the evidence presented
The sixth ground states:
The learned trial judge's decision is plainly wrong when his Honour arrived at his decision which is inconsistent with the evidence presented.
The father was the applicant in the proceedings before the primary judge. The father bore the onus of proving that the parenting orders to facilitate the child travelling overseas with him were proper and should be made having regard to the best interests of the child (being the paramount, but not the only, consideration). Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides the relevant test for the Court’s assessment of evidence in this matter as the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities. The father relies on Briginshaw v Briginshaw (1938) 60 CLR 336, which reasoning finds expression in s 140(2)(c) of the Evidence Act.
In a matter of this nature, there is a multiplicity of issues and facts which can bear on the Court’s assessment of the risk of the child not being returned to Australia (as was contended by the mother) against the benefits to the child of travelling to destinations with the father. The mother’s state of mind is relevant. Significant weight must be given to the genuine fears of a parent with sole parental responsibility that the child may not be returned, particularly in a case of high parental conflict such as the primary judge appreciated this family to be. The balance of probability standard requires that a court should be mindful of the seriousness of allegations before finding them proved. Where, as here, the father did very little to address the mother’s allegations, including allegations which could be answered with the provision of mundane details about the father’s mother, we conclude that his Honour had very little to weigh against the concerns expressed by the mother.
Ground 6 does not give rise to appellate intervention.
Ground 7 – Arrived at a finding of fact not supported by evidence
Ground 7 states:
The trial judge erred when he arrived at a finding of facts which could not be supported by any form of extrinsic evidence.
The father refers to his Honour’s “erroneous finding of facts evident in paragraphs 24, 25, 26, 27, 28 and 31 which are purely unsubstantiated allegations”. The paragraphs to which the father refers include references to the following allegations by the mother:
a)The father has never mentioned any relationship or communications between the child or paternal grandmother in any affidavit and at [24] that:
The [mother’s] evidence was that she had serious doubts about whether the [father] was “creating a hypothetical paternal grandmother to receive a sympathetic grounds (sic) to mislead the court as he managed to open the rehearing of child custody case pretending and lying ‘that [the mother] had visited [Country B] and threatened his family’”.
b)The father is “unprofessional”, “violent” and “untrustworthy” (at [25]);
c)There is a “huge risk” in allowing the child to travel to Country N and Country B as the father will attempt to remove the child from Australia permanently. The mother said that the “Father will find a loophole to remove the child from Australia and the child will never return” (at [26]);
d)The father deals in “black money” and illegal business in Country N and Country B and that there has been an investigation into the father that found that large amounts of money has been transferred across the father’s numerous bank accounts (at [27]);
e)The father in 2016 has travelled to Country N, Country O and Country B over 15 times (at [28]); and
f)The father had described himself in media as a principal lawyer, migration agent, professor of law, academician and deputy vice chancellor but was dependent on Centrelink as he has no income (at [28] & [31]).
It is apparent from reading each paragraph to which the father referred, that the primary judge was merely reciting some of the mother’s allegations and did not state or infer that his Honour was necessarily accepting the mother’s allegations. His Honour stated at [25], in relation to the allegation of unprofessional, violent and untrustworthy behaviour:
I am not sure what that means because no facts were provided but it is clear that in respect of the matters to which I need to turn as an exercise of discretion in a case like this, the court needs to be careful about ignoring allegations where there is a long history of mistrust and lack of communication between the parties.
It is clear that his Honour was cautious about the long history of mistrust and conflict between the parties.
As his Honour observed at [29]:
It can be seen why the subsequent affidavit of the [father] which did not deny any of these matters is concerning bearing in mind the serious nature of the allegations which underpin the [mother]’s assertion that the [father] would find a “loop hole” to take [the child] from Australia and never return.
In the father’s Summary of Argument at page 9, he also seems to refer to the “finding of facts” as the decision by the primary judge to dismiss his application. If that is what is contended, it is merely another assertion that the primary judge erred in his determination and that is not a proper ground of appeal.
Ground 7 fails.
Ground 8 – The organs of the Court failed to afford the father with procedural fairness
Ground eight states:
The organs of the court have not afforded the [father] procedural fairness when the matter was unscrupulously transferred to different courts and before different judges over an unreasonable period of time which resulted in a grave miscarriage of justice against the [father].
The father submits that the procedural history of the application, from being originally filed in Dandenong, to then being transferred to the Melbourne Registry and then going before Johns J, Macmillan J and then the primary judge, was procedurally unfair.
The father submits in his Summary of Argument at page 10 that:
… his Honour is a biased judge and as such the [father] have appeared before his Honour on 30.1.2011 to challenge him from hearing the [father]’s divorce/nullity hearing. The [father] submits that his Honour had adjourned the hearing and later dismissed the challenge. It was from that day onwards that his Honour disagrees with the [father]. As mentioned in ground 3 above, the disagreement by his Honour can clearly be seen from the remarks he made against the [father] which no fair-minded lay observer would say is called for and/or not laced with sarcasm. Further to this, the [father] submits that the transfer of his matter before his Honour is an adjusted, calculated and deliberate attempt by the registry officials to victimize the [father].
(As per original)
We have discussed bias earlier in these Reasons in relation to Ground 3.
With the exception of the father’s Application in a Case filed 21 September 2018, the orders made by Johns J on 21 November 2018 and the orders made by Macmillan J on 18 December 2018, no part of the Appeal Book recounts the part of the proceedings which we discern the father’s final ground of appeal relates to.
The father also submits in his Summary of Argument at page 10 that:
… the time frame for filing to hearing, nearly one entire year. This is the reality of the matter which no escape could be had from. As such, the [father] submits that these procedural aspects could not be separated from the case. The [father] further contends that all of these matters have been included in the first appeal book filed by the [father] on 14.6.2019. However, the Appeal Registrar have proceeded to remove the relevant applications and exhibits relevant to prove the above. The [father] submits that all correspondence between the [father] and the Registry officials ought to be part and parcel of the appeal. This is because his Honour and the Registry officials have tactfully and used the court procedures and manipulated the case against me. Without placing these documents before the Appeal judges, the case as seen coarsely from the current and amended Appeal Book does not have any merits. Therefore, the [father] wishes to submit a supplementary Appeal Book as allowed by law.
(As per original)
As indicated, the father did not make any application to review the determination of the Appeal Registrar or to adduce further evidence in the appeal. No application in an appeal was filed in relation to a supplementary appeal book.
No part of the record before us substantiates the father’s various complaints against Officers of the Court including his Honour, Registrars and the Appeal Registrar.
Ground 8 also fails.
Conclusion of the appeal
None of the grounds contended for by the father warrant appellate intervention.
Costs
We invited submissions as to costs. Neither the mother or the father sought any order in relation to costs, and we are satisfied that there should be no costs order in this case.
I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Watts, Tree & Bennett JJ) delivered on 18 November 2019.
Associate:
Date: 18 November 2019
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