HARSHANI & DARNITH
[2013] FamCAFC 214
•18 September 2013
FAMILY COURT OF AUSTRALIA
| HARSHANI & DARNITH | [2013] FamCAFC 214 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – where the husband appeals final parenting orders – where the wife opposes the appeal – where the husband provided no transcript of the hearing before the Federal Magistrate – where the appeal does not raise any question of general principle – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – where the further evidence sought to be presented by the husband does not demonstrate how the orders under appeal are erroneous – where many of the documents sought to be introduced by the husband are completely irrelevant to the appeal – application dismissed. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the wife seeks her costs – where the wife is in receipt of legal aid – where the husband opposes any order for costs – where there are circumstances which clearly justify an order for costs – where impecuniosity can be no bar to an order for costs where an order is otherwise warranted – husband to pay the wife’s costs of and incidental to the appeal as agreed and in default of agreement as assessed on a party/party basis. |
| Family Law Act 1975 (Cth) – s 65DAA and s 94AAA(7) Evidence Act 1995 (Cth) – s 140 Family Law Rules 2004 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 D & D (Costs) (No 2) (2010) FLC 93-435 Herridge & Handerson (2011) FLC 93-474 SS Hontestroom v SS Sagaporack [1927] AC 37 |
| APPELLANT: | Mr Harshani |
| RESPONDENT: | Ms Darnith |
| FILE NUMBER: | MLC | 1556 | of | 2010 |
| APPEAL NUMBER: | SOA | 39 | of | 2012 |
| DATE DELIVERED:: | 18 September 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 30 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 April 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 387 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Moore |
| SOLICITOR FOR THE RESPONDENT: | Ravi James Lawyers |
Orders
The application in an appeal filed by the husband on 2 November 2012 be dismissed.
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal, such costs to be assessed on a party/party basis in default of any agreement as to the same.
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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 39 of 2012
File Number: MLC 1556 of 2010
| Mr Harshani |
Appellant
And
| Ms Darnith |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 27 August 2012 Mr Harshani (“the husband”) appeals against final parenting orders made by Federal Magistrate Hughes (as she then was) on 30 April 2012.
The appeal is opposed by Ms Darnith (“the wife”). Initially the wife filed a Notice of Cross-Appeal but that Notice was not pursued, and on
30 November 2012 it was dismissed at the request of the wife. Ultimately the wife sought to maintain the orders made by the Federal Magistrate.
In summary the final parenting orders made by the Federal Magistrate relevantly provided for the wife to have sole parental responsibility for the child, for the child to live with the wife, for the child to spend time with the husband increasing over specified periods of time, for telephone communication, for the husband to complete an anger management course and a parenting course, for the husband to submit himself for therapeutic counselling or treatment by a psychiatrist, psychologist or counsellor for a period of two years with any overnight time to be subject to the commencement of such therapy.
This appeal has had a chequered history before this court and I note the following:
a)The husband failed to file his draft appeal index within the time allowed by the Family Court Rules 2004 (Cth), but by consent the appeal was reinstated on 1 August 2012.
b)The Notice of Appeal that was reinstated was in a form that could not be pursued. The “grounds of appeal” comprised a four page narrative which failed to appropriately identify any appealable errors by the Federal Magistrate, and which frankly was an abuse of process.
c)Despite the inadequacies of the Notice of Appeal it was not dismissed, but by order made on 1 August 2012 the husband was directed to file an amended Notice of Appeal.
d)As recorded above, on 27 August 2012 the husband filed an Amended Notice of Appeal. Unfortunately, although it was an improvement on the original Notice of Appeal, this Notice still failed to contain proper grounds of appeal but rather comprised a combination of assertions and evidence. However, the court allowed the appeal to proceed to a hearing on the basis of that amended Notice.
e)This was not the first appeal that the husband had pursued in this matter. He appealed against interim orders made by the Federal Magistrate on 10 June 2010, and in that appeal the court encountered the same problems with the father’s Notice of Appeal and he was given the same opportunities to correct his documentation without necessarily achieving any better result. That appeal was ultimately dismissed.
f)The next problem created by the husband was his inadequate and inappropriate draft appeal index. As I remarked at the directions hearing on 24 September 2012 the index included a number of categories of documents where there was no indication of the filing date, or the swearing date if it was an affidavit, categories of documents where it was not apparent that those documents were before the Federal Magistrate, and categories of documents which were prima facie irrelevant. I refused to allow the latter categories of documents to be before the court for the purposes of this appeal.
g)The husband indicated that he would not be relying on transcripts of the hearing before the Federal Magistrate because they had been “tampered with”, including by the Federal Magistrate herself. Thus there was no transcript before the court at the hearing of this appeal.
h)At the directions hearing on 24 September 2012 the father filed an application seeking to prevent the wife’s solicitor from having any involvement in the case on the grounds that he had “[inserted] documents to courts [sic] files after the due date”, that he had produced documents on behalf of the wife certified by the Sri Lankan Consulate “without showing the originals”, and that he had obtained legal aid for the wife “through unlawful connections”. I dismissed that application on 30 November 2012 as having no basis whatsoever.
Background
Given how the court proposes to address this appeal it is unnecessary to set out a lengthy history. Thus I provide the following brief summary taken from
her Honour’s reasons for judgment.
The parties are both Sri Lankan. They met and commenced their relationship in Sri Lanka in 2004.
The wife migrated to Australia in 2005 and the husband in 2008. The parties married in 2006 when the husband was in Australia on a visitor’s visa. He returned to Sri Lanka in 2007 and migrated permanently to Australia a year later in 2008 sponsored by the wife.
The parties’ only child, A, was born in 2008 and he has lived with his mother since separation.
The parties separated in 2009 when the wife obtained an intervention order against the husband.
Both parties had been married before, and the husband has two older children to his first wife. They both came to live with their father in Australia in
2010 and have permanent residency status. The wife has no children from her first marriage, that marriage not surviving the still-birth of their only child.
The proceedings were instituted in the Federal Magistrates Court (as it then was) on 19 February 2010. The final hearing commenced in February 2011 but was adjourned part-heard to July 2011 when it was completed. Her Honour made final parenting orders and delivered her reasons for judgment on 30 April 2012.
The reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced her reasons for judgment by setting out the background and the history of the family law proceedings.
Her Honour then dealt with the wife’s allegations of violence and abuse, noting that a good deal of the time at trial was spent on these allegations; the wife asserting that the husband had been “physically, verbally, emotionally, sexually and financially abusive of her”, and that this had occurred “within a few months of his arrival in Australia”. The husband denied the allegations.
The allegations made by each of the parties post-separation were considered by her Honour who found that often the allegations made by each of the parties “mirrored the allegations of the other”. Her Honour then considered the evidence of the husband’s daughters from his previous marriage.
The Federal Magistrate went on to deal with credit issues finding that the wife’s evidence was more credible than that of the husband, and that her evidence “withstood vigorous cross-examination”. Her Honour agreed with the view of psychiatrist, Dr K, that the husband “was convinced of the correctness of his own opinion”.
Her Honour then turned to consider the psychiatric assessments of the parties prepared by Dr K and the family reports prepared by the family consultant.
Having addressed the relevant s 60CC matters her Honour found that there was “potential benefit” to the child in having a meaningful relationship with his father, so long as there were sufficient safeguards in place to protect him should the husband not be able to control his temper. Her Honour then determined that given the inability of the parties to be able to deal with each other in a civil and consultative way, particularly in light of the husband’s stronger personality and the fact that he may “bully the wife in an attempt to have his views take precedence”, the wife should have sole parental responsibility for the child. It was proposed however that on major long-term issues the wife advise the husband of any issue to be determined so that he would have an opportunity to put forward his views, which she could then take into account when making her decision.
Further Evidence
On 2 November 2012 the husband filed an application in an appeal seeking to adduce further evidence in the appeal. The evidence comprised documents in a “Contested Appeal Book” and documents annexed to an affidavit filed by the husband on 2 November 2012. The application was opposed by the wife save and except in relation to two of the documents.
The documents sought to be presented as further evidence are a grab bag of applications, affidavits, orders, subpoenaed material not put into evidence, complaints lodged against the Federal Magistrate, correspondence, emails, reports from health professionals, family reports, intervention order proceedings, family violence intervention orders and Facebook pages. I also observe that some of the applications and affidavits were filed after the date of the orders appealed against.
It is apparent that some of these documents were before the Federal Magistrate but most were not, and many are completely irrelevant to the appeal.
The affidavit filed by the husband was also of no assistance, comprising various allegations and complaints against the wife, her lawyer, Victoria Legal Aid and the Federal Magistrate. Indeed, they included an outrageous claim (paragraph 13) that on 25 October 2012 when the husband’s application for a stay was heard by the Federal Magistrate, the Federal Magistrate, the wife, the wife’s lawyer and a Victorian Legal Aid officer “had some discussions before coming to court”.
In any event, I propose to dismiss the application to lead this “further evidence”. I have done my best to appreciate and understand the “further evidence”, but it has simply not been demonstrated to this court how, if that evidence, or any of it, was accepted the orders under appeal are erroneous. This even applies to the two documents about which there was no dispute, and thus I do not propose to admit those documents.
Discussion
I am of the opinion that this 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.
I propose to address the so-called grounds of appeal as they appear in the Amended Notice of Appeal filed by the husband, but in order to attempt to make some sense of the husband’s complaints I also propose to refer where necessary to his written summary of argument.
Ground 1 – “Considering materials not being dealt with”
The complaint here is that her Honour relied on “materials” that were not before her. Specifically the husband claims that her Honour utilised “unauthorised and illegally obtained documents from Sri Lankan court proceedings” in making her orders.
I am not persuaded that this challenge has any merit. Her Honour was made aware of the proceedings in Sri Lanka via the affidavit material that was properly before her, and via the oral evidence of the wife and the husband, and her Honour referred to this in paragraphs 157 to 167 inclusive of her reasons for judgment.
Her Honour recorded in paragraph 157 of her reasons for judgment how the documents for those proceedings came into the hands of the wife. Put simply, they were public documents and thus there can be no suggestion that they were “unauthorised” or “illegally obtained”. In any event, her Honour stated in paragraph 162 of her reasons for judgment that none of these documents “came into evidence in the current proceedings”.
It was quite open to her Honour, as she did, to draw conclusions from the oral evidence of the parties, including the husband’s concessions in cross-examination, as to what had occurred in Sri Lanka. Thus there is no merit in this ground of appeal.
Ground 2 – “Tampering with transcripts”
The husband alleges that her Honour has “tampered with” the transcripts of the hearing. This is simply an outrageous claim about which there is no evidence, and I reject it.
I observe that this same complaint was made in the husband’s appeal against the interim orders made by her Honour on 10 June 2010, and it was also rejected by the court at that time.
Grounds 3, 4 and 5 – “Distortion of Evidence”
It is quite apparent that what the husband is complaining of here is that the Federal Magistrate accepted the evidence presented by the wife in preference to his evidence.
It is the case that after careful consideration the Federal Magistrate found the evidence of the wife to be much more credible than the husband’s. Her Honour said this in her reasons for judgment:
254.On the whole, I found the wife’s evidence to be much more credible than the husband’s. The wife presented a coherent, consistent and compelling narrative which withstood vigorous cross-examination. Although much of the evidence about violence was uncorroborated, that is not unusual in cases involving family violence which, by its nature, often occurs in private. There is, in any event, no requirement for corroboration. Having said that, there was some direct and indirect corroboration of aspects of the wife’s evidence including, at times, by the husband. The clearest corroboration was found in the notes of the Maternal and Child Health Service but other, indirect, corroboration came in the form of evidence consistent with the wife’s narrative. I will return to that evidence shortly.
255.The husband’s credibility was adversely affected by the fact that he seemed to perceive any criticism or demands of him as persecution. For example, when asked about his attitude to child support, including his application to reduce what was an assessment which required him to pay approximately $20 per month to support his son, the husband said he made the application to depart for the administrative assessment because he felt the wife was utilising the legal system to harass him. He agreed that after separation he paid nothing to the wife by way of child support.
256.The psychiatrist, Dr [K], formed the view that the husband was convinced of the correctness of his own opinion. I formed the same view. Any adverse experience for him was attributed entirely to the faults of others. For example, the husband said that, in his experience, many female magistrates are sexist because they allow women to tell lies and get away with it. He said this opinion is borne of his own experience in relation to intervention orders in the Victorian Magistrates Court and in relation to the parenting proceedings in this Court. He readily conceded that the female magistrate who gave him an intervention order against his sister in law was not sexist. (Footnotes omitted)
There is of course a presumption that a decision of a trial judge or Federal Magistrate is correct, and the onus is on the appellant to demonstrate that the trial judge or Federal Magistrate made an error. This is always a difficult task where the challenge is to a trial judge’s or Federal Magistrate’s findings on credit, because a trial judge or Federal Magistrate enjoys advantages that an appeal court lacks. For example, Lord Sumner in SS Hontestroom v
SS Sagaporack [1927] AC 37 at 47 said this:… not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probability of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
Here it has not been demonstrated that the Federal Magistrate “has failed to use or has palpably misused [her] advantage” and the husband has not taken the court to anything which persuades the court that her Honour erred in her findings on credit.
I cannot leave these grounds without mentioning another outlandish complaint made by the husband against her Honour. The husband says that her Honour’s distortion of the evidence was “an adjusted and well calculated action against [him] and his son”. Indeed, this constituted a theme of the husband’s case. For example, in his affidavit in support of his application to adduce further evidence the husband also stated that (paragraph 2):
… the prime object of my appeal is to correct unprecedented, unbearable and carefully constructed and personally aimed attack by Hon. Federal Magistrate (FM) Hughes and her agents against me and my son.
I reject these claims and also find there is no merit whatsoever in these grounds of appeal.
Grounds 4 and 5 raise specific issues from the course of the trial, but they are still part of the same general complaint made by the husband that the Federal Magistrate has “distorted the evidence”. I am not persuaded that these specific instances reveal any appealable error by the Federal Magistrate.
Grounds 6, 7 and 8 – “Wrongful evaluation of evidence and Family violence wrongly used”
This is the same complaint that the husband makes about the Federal Magistrate accepting the evidence provided by the wife and rejecting the evidence provided by the husband, but specifically in relation to the issue of family violence.
There is no doubt that her Honour accepted the wife’s evidence in that regard and found that the husband had been violent and that the child has been exposed to that violence. Thus, this became a significant issue in how the case was decided by the Federal Magistrate. However, again, the husband has failed to demonstrate that the Federal Magistrate has erred in her findings, and these grounds of appeal must also fail.
Ground 9 – “The application of Briginshaw Standard upside down”
This complaint goes to the standard of proof applied by her Honour. The father refers to the well-known authority of Briginshaw v Briginshaw (1938) 60 CLR 336, and to s 140 of the Evidence Act 1995 (Cth), and he suggests her Honour erred by using a “higher standard of proof to reject [his] evidence and a lower standard of proof to accept [the wife’s] evidence”. However, the husband has not been able to take the court to the transcript of the hearing because he has not provided such transcript, and he has not identified any parts of
her Honour’s reasons for judgment where this approach is demonstrated. For my part, having closely read her Honour’s reasons I can find nothing that supports this complaint. Indeed, it is apparent from paragraph 252 of her Honour’s reasons that the Federal Magistrate was not only well aware of the standard of proof required when serious allegations are made, but also her Honour appropriately applied that standard. Accordingly, I find no merit in this ground of appeal.
Ground 10 – “Unacceptable delay”
The husband complains that there has been an “unacceptable delay” in making the orders. The trial took place in February and July of 2011 and her Honour made her orders and delivered her reasons for judgment on 30 April 2012. Thus there was a delay of just over nine months in making the orders.
I find that there is no merit in this complaint. Delay per se in delivering a judgment cannot result in appellate intervention, but it may cause an appeal court to look more closely at the reasons for judgment than would otherwise be the case (Herridge & Handerson (2011) FLC 93-474). In other words, with a lengthy delay, it might be open to suggest that the Federal Magistrate’s findings and/or conclusions are unsafe. However, that is not what is submitted by the father. His claim is that the delay gave her Honour more time to “distort” the evidence, and to “adjust the ground work for attacking the [husband]”.
I reject that claim, and find that there is nothing about the delay in making the order which sounds in appellate error.
Ground 11 – “Reasonably not practicable”
It is submitted by the husband that the orders, and specifically order 8, are not reasonably practicable. Order 8 provides as follows:
Until the commencement of the school year in 2015, the father shall ensure that one or both of his adult daughters are present during all periods of time the child spends in his care.
The husband submits that s 65DAA(5) of the Act requires the court to “consider the reasonable practicability of the orders”. The difficulty for the husband though is that this subsection only needs to be considered for the purposes of sub-ss (1) and (2) of s 65DAA, and neither of those subsections apply here because there is no order for equal shared parental responsibility.
In any event, prima facie, it might be said that to make an order such as order 8 is unusual, however her Honour adequately explained her reasons for making it, and it was in the context of her Honour’s finding that there are potential risks to the child in the care of the husband. Her Honour was satisfied (paragraph 384 of her reasons for judgment) “… that the biggest risks arise from the husband’s rigid pursuit of self-interest, his preparedness to resort to violence, his explosive temper and his possible mental ill-health”. Thus her Honour found that there was a need to put a number of safeguards in place, and this was one of them.
There is no error by her Honour here.
Grounds 12 and 13 – “Divorce case wrongfully transferred to nullity case of marriage”
It is not readily apparent what this complaint is about, and it has not been helped by the husband’s failure to address it in his written summary of argument beyond the bald statement that there has been procedural unfairness.
Her Honour was dealing with a parenting case and not a divorce or nullity case. However, in paragraph 6 of her reasons for judgment, in describing the relevant background, her Honour referred to the husband having applied for a divorce but the wife in her response seeking a decree of nullity, and recorded that those proceedings were still pending in the Family Court. As far as I can see this issue was purely historical and has no relevance to her Honour’s decision. As a result there is no appealable error demonstrated.
In Ground 13 the husband complains about the alleged failure by the wife to disclose to him before the marriage “facts about her first marriage or about her still-birth”. He says that evidence as to these issues was placed before the court, but this was not considered by her Honour. Again, I fail to see the relevance of this to her Honour’s decision, and no appealable error has been demonstrated.
Ground 1 [sic] – “Copying the judgement [sic] to irrelevant people”
It is said by the husband that the deputy associate of the Federal Magistrate had copied the judgment and “details” to the wife’s current solicitor, and that was somehow “procedurally unfair, illegal and deserves an investigation”.
This is a baseless allegation and needs no further comment. It has not been demonstrated that her Honour denied the husband procedural fairness or breached in any way the rules of natural justice.
Ground 2 [sic] – “Over stepping the legislative intent”
The challenge here seems to be that her Honour failed to apply the provisions of the Act, or rather apply them correctly.
As with all of the other grounds of appeal there is no merit in this challenge. Her Honour, in a thoughtful judgment, identified and then applied the relevant sections of the Act to the evidence before her, and no error in that regard has been demonstrated.
Ground 3 [sic] – “Whole order is challengeable and the order has no value in eyes of law”
This is a ground where all the husband does is make general complaints about the Federal Magistrate’s lack of insight and her failure to exercise her discretion properly, that her conclusions are “unreasonable, unjust and plainly wrong”, that she has not considered what is in the best interests of the child, and that her actions have placed the child at risk.
None of these allegations have been established and I reject all of them. There can be no merit in this ground of appeal.
Conclusion
Having found no merit in any of the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing I received submissions as to costs.
In the event that the appeal was dismissed the wife sought her costs, she being the recipient of legal aid.
The husband opposed any order for costs citing his financial circumstances. He receives a Centrelink benefit of $520 – $540 per fortnight, he lives in rented accommodation, and he claims to have no assets except his motor vehicle valued at $850.
There are clearly circumstances here that justify an order for costs (s 117(2) of the Act). The husband brought a completely unmeritorious appeal and he has been wholly unsuccessful. The husband’s financial circumstances, although relevant, cannot prevent an order for costs being made. The Full Court has said on many occasions that impecuniosity can be no bar to an order for costs where an order is otherwise warranted (e.g., see D & D (Costs) (No 2) (2010) FLC 93-435). Costs should follow the event and there is no basis here to alter that result.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
18 September 2013.
Associate:
Date: 18 September 2013
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