HARTMAN & HARTMAN
[2016] FamCAFC 98
•9 June 2016
FAMILY COURT OF AUSTRALIA
| HARTMAN & HARTMAN | [2016] FamCAFC 98 |
| FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the appellant appeals two interim decisions of the trial judge – Where the appellant asserts the trial judge demonstrated apprehended bias – Whether the trial judge erred in refusing to recuse herself – Where the trial judge could not make findings on allegations of family violence until the evidence was properly tested at a trial – Where the appellant challenged procedural orders – Whether the trial judge erred in refusing to discharge the family consultant – Where the appellant did not want the family consultant to prepare a second report – Where a second report had already been prepared by a different consultant – Where the appellant challenged the matter being set down for trial – Appeals dismissed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Applications to adduce further evidence – Where the appeals had no merit and there was no basis for admitting the evidence – Applications dismissed. FAMILY LAW – COSTS – Where the appellant is ordered to pay the Independent Children’s Lawyer’s costs. |
| Family Law Act 1975 (Cth) ss 60CC, 117 |
| CDJ v VAJ (1998) 197 CLR 172 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 |
| APPELLANT: | Ms Hartman |
| RESPONDENT: | Mr Hartman |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 1879 | of | 2010 |
| FIRST APPEAL NUMBER: | EA | 100 | of | 2015 |
| SECOND APPEAL NUMBER: | EA | 11 | of | 2016 |
| DATE DELIVERED: | 9 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, Ainslie-Wallace & Aldridge JJ |
| HEARING DATE: | 24 May 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 4 June 2015 and 17 December 2015 |
| LOWER COURT MNC: | Not applicable |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Haddock |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
Orders
Appeal EA 11 of 2016 against the refusal of Judge Hughes to recuse herself from further hearing the matter and against her refusal to remove the family consultant in the case is dismissed.
Appeal EA 100 of 2015 against orders (3), (4), (5) and (13) made by Judge Hughes on 4 June 2015 is dismissed.
The Applications to adduce further evidence in the appeals filed on 16 May 2016 and by leave on 24 May 2016 are dismissed.
The appellant mother pay the Independent Children's Lawyer’s costs of the appeal fixed in the sum of $1,800.00. Such costs to be paid within forty-two (42) days of the date of this order.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hartman & Hartman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 100 of 2015; EA 11 of 2016
File Number: CAC 1879 of 2010
| Ms Hartman |
Appellant
and
| Mr Hartman |
Respondent
and
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Ms Hartman (“the mother”) and Mr Hartman (“the father”) are parents of two children, S (born 2002) and E (born 2004). The mother and father have been engaged in litigation about the parenting arrangements for the children for some time.
The mother has filed two appeals, the first against a number of procedural orders made by Judge Hughes and the second against her Honour’s refusal to disqualify herself from the further hearing of the matter.
The father did not appear at the appeal hearing. The Independent Children’s Lawyer (“the ICL”) appeared and argued that the appeals should be dismissed.
Background
It is necessary for these purposes to traverse the history of the litigation between the parties in a little detail in order to give context to the appeal.
In November 2010, it was agreed between the parents that the children would live with the mother and spend time with the father. In August 2011, the mother became psychiatrically unwell and the children went to live with the father. On 10 October 2012, the parties agreed and it was ordered that they would have equal shared parental responsibility for the children who would continue to live with the father and spend time with the mother.
In September 2013 the mother sought to vary the orders made on 10 October 2012. After a number of directions hearings, the mother’s application came before Judge Bender on 3 December 2013. On 3 December 2013 (with reasons delivered 7 February 2014) her Honour ordered the hearing of the matter be adjourned and made orders which, relevantly to the appeal, required the children to attend on a family consultant for the purpose of the preparation of a family report. The orders requested the consultant to consider, in addition to the matters to which s 60CC of the Family Law Act 1975 (Cth) (“the Act”) refers, what if any pressure was being exerted on the children in relation to their living arrangements and that the impact on the children of their living arrangements be reconsidered.
Thereafter the matter came before Judge Hughes on 1 August 2014 when the judge appointed an ICL. The matter was again before Judge Hughes on 8 August 2014 and again adjourned. On that date, her Honour noted that in the adjourned period, the parties should enquire about the availability and cost of counselling for the children and a psychiatric assessment of one or both parents.
On 15 September 2014 the matter was again before her Honour who ordered the parties to seek the preparation of an independent psychiatric assessment of the mother and that the ICL prepare a briefing letter to the psychiatrist in consultation with the parties which would include relevant documents.
On 7 November 2014, the matter was further adjourned by her Honour and in the interim the father was given leave to make arrangements for the children to attend on a psychologist, such expert to be agreed between the father and the ICL.
On 16 December 2014 when the matter returned to her Honour, the parties were ordered to take steps to arrange for a psychiatric assessment of the mother and report from a nominated doctor.
On 12 May 2015 a report was received from Dr A who had undertaken the ordered psychiatric assessment of the mother.
When the matter was next before her Honour, on 4 June 2015 the child S had returned to live with the mother. Her Honour made orders (1 and 2) that the child live with the mother and set out a regime by which the child S would spend time with the father.
Her Honour made further procedural orders, of which the following four are the subject of appeal EA 100 of 2015:
3. Order 3 of 7 November 2014 in relation to the children attending upon a psychologist is discharged noting however, that this does not prevent the parties agreeing to attain psychological support for the children.
4. Order 2 of 19 May 2015 is discharged and the psychiatric report of Dr [A] dated 12 May 2015 shall not be released to any person other than the family consultant preparing the family report without an order of the Court.
5. The matter is listed for final hearing for 3 days commencing on a date to be advised.
…
13. Pursuant to Section 62G(2) of the Family Law Act 1975 a updated Court funded family report be prepared by Ms [W] in relation to the parties and children [S] born 2002 and [E] born 2004 to be released by 1 February 2016. The parties shall comply with all reasonable directions of the family consultant including making themselves, the children and any other relevant person available at times nominated by the family consultant. The family consultant is requested to read in particular the mother’s affidavits critiquing the expert reports including the first family report.
(Emphasis in original)
On 10 December 2015 the mother filed an Application in a Case seeking an order that Ms W be removed as the family consultant in the case. On 15 December 2015 the mother filed an Application in a Case seeking an order that Judge Hughes recuse herself from further hearing the matter.
Those applications were heard by her Honour on 17 December 2015 and each was dismissed. The mother by Appeal EA 11 of 2016 appeals these orders.
EA11 of 2016
Failure to recuse
The law in relation to disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 ‑ 345, Gleeson CJ, McHugh, Gummow and Hayne JJ held:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7. The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8. The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Original emphasis and footnotes omitted)
Before turning to the grounds of appeal in relation to this challenge, we will set out the mother’s case as argued before her Honour on 17 December 2015.
In support of the recusal application, the mother referred to her allegations of family violence against the father and stated that there are “big issues that are not being addressed with the father” (Transcript 17 December 2015, p. 6, lines 27-28). Her Honour replied:
HER HONOUR: … But you are quite right to say that violence has a very prominent place in part 7 of the Family Law Act, which deals with children. And in working out what is in the child’s best interests the court has to bear in mind two primary considerations. One is the benefit of the children of a meaningful relationship with both parents, which in this case both parents seem to want for the children to have a proper relationship with both parents.
…
And the need to protect the child from harm. Now, the Act talks about protect the child from harm arising from abuse, neglect and family violence. But the court also has to bear in mind other forms of harm. Now, my problem in dealing with your case is that you make allegations about the father, he makes allegations about you. It’s difficult to work out before we have a final hearing precisely what’s going on. I am very interested in the issue of family violence. Some of the allegations that you made about the father are quite extreme. For instance, that he has picked up [the child E], thrown him against walls and then picked him up and threw him down a staircase. Now, I would expect there to be evidence of very serious injuries had that occurred.
(Transcript 17 December 2015, p. 6, lines 34-47; p. 7, lines 1-5) (Emphasis added)
Her Honour then said to the mother:
Now, it may be that I am ultimately satisfied that the children should not be spending so much time with their father. It may be that the matter resolves on the basis that the children spend a lot of time with both of you, but for the moment we have to wait for the hearing so that all of the evidence can be tested.
(Transcript 17 December 2015, p. 7, lines 45-47; p. 8, lines 1-3) (Emphasis added)
The mother further argued that her Honour required the mother to prove her allegations of family violence to a standard different to other litigants. As an example, the mother referred to her Honour’s request that she file an affidavit of the school teacher who had told the mother that the child E was not being provided with sufficient food at school (Transcript 17 December 2015, p. 8, lines 37-47; p. 9, lines 1-6). It is clear that her Honour simply wanted direct evidence of the allegation, and was not dismissing the seriousness of the situation.
The mother then raised with her Honour the issue of the provision of terms of reference for the assistance of Dr A in preparing his report. She said to her Honour: “… who chose not to send the four agreed questions to Dr [A]?” (Transcript 17 December 2015, p. 10, lines 2-3).
Her Honour pointed out to the mother that although there was a discussion about some terms of reference, her Honour made an order for him to do an assessment and to be provided with some information about the history. Indeed her Honour pointed out to the mother that she was asked about the form of order and agreed with the material that was to be sent to Dr A (Transcript
17 December 2015, p. 10, lines 27-30).
The mother complained that her Honour’s order did not include an assessment of her “mothering ability and relationship with the children”. Her Honour replied that Dr A’s role was not to prepare a family report but to assess the mother’s psychiatric health (Transcript 17 December 2015, p. 10, lines 32-33 and 43-45).
The mother’s submissions then moved to her assertion that the father had “kidnapped the children” in 2011. Her Honour said:
HER HONOUR: My understanding is the children were removed from your care after you had had the episode of mental illness in 2011. Whether or not they continue to live with their father or go back to – – –
MS [HARTMAN]: They were kidnapped. That was not negotiated.
…
HER HONOUR: Wasn’t it – but didn’t a court order – wasn’t there a court order made reflecting that arrangement.
MS [HARTMAN]: Yes. …
(Transcript 17 December 2015, p. 12, lines 28-41)
Her Honour then refused the mother’s application to recuse herself.
Grounds of appeal
The grounds of appeal are lengthy and prolix and many are unrelated to the issues on which the mother relied before her Honour to found her application. Nevertheless, they may be summarised as:
Ground 1: The trial judge erred in failing to recuse herself;
Ground 3: The trial judge erred in not ordering a psychiatric report for the father and failed to appreciate that the father has a psychiatric condition.
Grounds 2 and 4: The trial judge failed to give sufficient weight to the mother’s evidence of family violence and did not accept the mother’s evidence of it because she had not produced “third party evidence”.
Ground 5: The trial judge erred in not providing terms of reference to
Dr A and in not appointing a psychiatrist to assess the mother’s “mothering ability”.
Ground 6: The trial judge failed to recognise that the father had kidnapped the children from the mother in August 2011.
Grounds 7 and 8: The trial judge erred in discharging the order that the children see a psychologist and in setting a final hearing when the:
·psychiatric evidence about the mother is deficient;
·father has a “live” psychiatric condition;
·children have been “silenced” in court because they are not seeing a psychologist other than Ms W;
·trial judge had not removed Ms W as the family consultant in the case;
·trial judge failed to recognise that Ms W’s report was unbalanced in the father’s favour;
·Ms W preferred the father’s opinion of the mother’s mental health; and
·Ms W told the mother that the children wanted to be with her because of pressure on them.
Ground 9: The trial judge erred in failing to remove Ms W as the family consultant.
These grounds are more properly seen as particulars of the allegation of apprehended bias. The mother said that the judge’s conduct during the various proceedings was the basis for the disqualification application. In particular, in a number of the grounds, the mother refers to her mental health and expressed concern that the judge and the experts demonstrated inappropriate emphasis on this issue.
It is apparent that the mother’s assertions about her Honour failing to take the issue of family violence seriously and requiring her to prove the allegations by reference to “third party evidence” are unsupported by the transcript.
It is entirely clear that her Honour was not prepared to nor could she make findings on the mother’s assertions about family violence until such time as the evidence had been tested. Further, the balance of the grounds challenge not her Honour’s failure to recuse herself but complain that the trial judge did not accept the mother’s version or assertions and, it seems the challenge extends to her Honour not making findings on serious issues at this interim stage.
The whole of the mother’s appeal and the contentions of error which she alleges are contained within her Honour’s determination, are best summed up by the submission of counsel for the ICL to her Honour on the question of recusal.
MR HADDOCK: … I think the real difficulty the mother has from her submissions, your Honour, appears to be that she feels ignored and let down when decisions aren’t made in her favour. But it seems to be that the reality is that’s because people don’t agree with her. Or in the alterative, [sic] there’s a lack of understanding, particularly in relation to issues of violence, when she says issues of violence are being ignored. What really seems to be said is there’s not a ruling on those issues of violence. And your Honour has explained numerous times that your Honour is not in that position to make that ruling until you’re at a final hearing and you have the evidence and you can test it.
(Transcript 17 December 2015, p. 15, lines 5-13)
During oral submissions on appeal, the mother claimed that her Honour had called her a liar. Her Honour did not call the mother a liar as the following extract from the transcript demonstrates.
Her Honour had discussed with the mother an SMS message sent to the child S sometime before and whether the mother agreed that, whenever it was sent, it was she who had sent it. In the context of that discussion, the mother said:
MS [HARTMAN]: Right. Well, I went back through my documentation. Judge Bender actually ruled on that because that was from a year prior. [The father] presented it as current information by sending it on to [Ms B] and putting that inside his affidavit. When I went back through it, I had sent the SMS. But it had already been ruled against. [The father] sat down – [S], our daughter, and made her read through the original affidavit which was far more serious and formal court documentation. However, I’m in trouble for contrived evidence that has been presented twice. That is not a balanced perspective.
HER HONOUR: Well, if that turns out to be the case, if it turns out the court was misled, then that places a different slant on it. But as I said, because I asked you about it, that’s what helped me.
MS [HARTMAN]: And because I said I didn’t recall - - -
HER HONOUR: Yes.
MS [HARTMAN]: - - - then I’m a liar?
HER HONOUR: Well, you’re saying things that I’m not saying. I’m not saying that.
MS [HARTMAN]: Yes, you are by omission. Interesting. …
(Transcript 17 December 2015, p. 9, lines 26-46; p. 10, line 1)
Her Honour sought to assure the mother that she was not suggesting the mother was lying, but despite that, the assertion was repeated by the mother.
We reject the submission that her Honour called the mother a liar and we reject the submission that it can be inferred from what was said.
The mother has not established that her Honour wrongly failed to recuse herself and this challenge is rejected.
Ms W
As we have indicated, on 17 December 2015, her Honour also heard an application by the mother that Ms W not prepare an updated family report in the matter. She had provided a family report in the proceedings dated
31 July 2014.
The mother argued that Ms W should not prepare a further updated report because her first report was flawed. For example it did not take into account an affidavit of the mother filed on 10 September 2013.
Although her Honour dismissed the mother’s application that Ms W not update her report, it was conceded in the appeal hearing that another family consultant, Dr Z, had prepared a further report, not Ms W. The ICL agreed that this second report favoured the mother and said that he would not rely on Ms W’s report in the final hearing.
Nonetheless, the mother pressed her appeal against her Honour’s order arguing that the first report of Ms W should be excluded from the evidence. It is worth observing that there was no application to the trial judge for an order to that effect.
When the court explored why then the mother was pressing her appeal in relation to this report, she contended that she could not rely on the ICL to not change his mind and rely on the report in the final hearing and, when it was suggested to her that the flaws that she identified in Ms W’s report could be the subject of cross-examination of Ms W in the event that the report was introduced into evidence in a final hearing, the mother replied “I have been told that”. Yet she pressed the appeal.
Clearly the Full Court can make no order about Ms W’s first report, nor would we be inclined to.
The mother was entirely aware of the updated report of Dr Z, and that it was in her favour, because she sought its admission as evidence in the appeal.
The mother’s appeal against an order which has no further effect is futile and will be dismissed.
EA100 of 2015
Appeal against the orders of 4 June 2015
As we have indicated, the mother appeals against four orders made by the trial judge on 4 June 2015. For ease of reference, we set them out again:
3. Order 3 of 7 November 2014 in relation to the children attending upon a psychologist is discharged noting however, that this does not prevent the parties agreeing to attain psychological support for the children.
4. Order 2 of 19 May 2015 is discharged and the psychiatric report of Dr [A] dated 12 May 2015 shall not be released to any person other than the family consultant preparing the family report without an order of the Court.
5. The matter is listed for final hearing for 3 days commencing on a date to be advised.
…
13. Pursuant to Section 62G(2) of the Family Law Act 1975 a updated Court funded family report be prepared by Ms [W] in relation to the parties and children [S] born 2002 and [E] born 2004 to be released by 1 February 2016. The parties shall comply with all reasonable directions of the family consultant including making themselves, the children and any other relevant person available at times nominated by the family consultant. The family consultant is requested to read in particular the mother’s affidavits critiquing the expert reports including the first family report.
(Emphasis in original)
We will refer to the arguments of the mother in support of this appeal, but would observe that each of the orders that she seeks are procedural and aimed at preparing the matter for trial and for that reason we would be reluctant to interfere with them.
In addition, the result sought by the mother should such an appeal succeed were that orders be made in terms usually seen in the conduct of preparation for the trial or an interim hearing. None was an order that ordinarily would be made by an appeal court. They were as follows:
1.A psychiatrist be appointed to investigate [the father’s] behaviours in relation to violence, bullying and negelct [sic] toward the children and myself. Further to provide a general diagnosis in relation to his fathering ability and relationship with the children at shared cost between the parents; and that the father undertake any recommendations in terms of anger management, parenting or both.
2.That Dr [A] or an alternate psychiatrist be appointed with the four standard legal aid terms of reference for the completion of a psychiatric report in relation to my mothering ability and relationship with the children at shared cost between the parents. Dr [A’s] original report to be dismissed as evidence.
3.The children see a psychologist with input from either both or neither parent (other than [C Psychologists]). [Ms B] is not to attend.
4.That the alternate court psychologist be appointed to carry out the family assessment.
5.That the children live with the mother and spend time with the father as follows:
a)every second weekend from after school on Friday until the commencement of school on Monday;
b)for half the school holidays;
c)such additional or alternate times as agreed between the parties.
5.That the children spend special days with the respective parent i.e. Mother’s Day, Father’s Day and parental birthdays.
(As per the original)
Grounds of appeal
The grounds are discursive and unrelated to the orders challenged. Many of them are identical to the grounds of challenge to her Honour’s refusal to recuse herself and in ordering Ms W to prepare another report and in not dismissing Ms W as the family consultant.
Stated in general terms, they assert error in not ordering a psychiatric report of the father; in not ordering another psychiatrist to make a report in lieu of Dr A; in releasing Dr A’s report to Ms W for use in her updated report; in discharging the orders for the children to attend a psychologist and that in so doing her Honour “silenced” the children; in setting the matter down for hearing when the evidence is deficient or incomplete; and in not removing Ms W as the family consultant in the case and that her Honour did not make an order that the children spend time with the mother on “special occasions”.
As to the contended error in not ordering a psychiatric assessment of the father or seeking a different psychiatrist to report on the mother, no application was made by the mother to the judge for orders to that effect. There can then be no appeal against her Honour’s failure to make an order not sought by the mother.
As to Order 3, the discharge of the order for the children to attend a psychologist, this issue was the subject of submissions before her Honour and her Honour was told that although the children had seen a psychologist, they were no longer attending. It is clear from reading the transcript that there was a disagreement between the parties as to who should be the psychologist for the children. Her Honour said:
HER HONOUR: Well, I think I might as well discharge that order because it’s not happening. There’s no point in it going on, is there. Let’s just let the arrangement settle now and see where we get to for the final hearing.
MS [HARTMAN]: Does that mean the children won’t be attending a psychologist from here forward?
HER HONOUR: Yes.
MS [HARTMAN]: Okay
(Transcript 4 June 2015, p. 11, lines 20-29)
The mother indicated that she was not “entirely in favour of that” because she believed that [E] needed to “debrief on what has happened in the home” to which her Honour replied:
HER HONOUR: There is nothing to stop the two of you cooperating – the two of you and the independent children's lawyer - cooperating to get the children some psychological assistance. But you have to cooperate. And if there’s going to be continual arguments about it, there’s no point. It’s just not worth the angst.
(Transcript 4 June 2015, p. 11, lines 37-30)
Her Honour’s order was one which was entirely open to her and eminently sensible. It was an exercise of her discretion and the mother has not demonstrated any error that would invite appellate intervention.
The challenge to Order 4 in which her Honour directed the release of
Dr A’s report to the family consultant is procedural. Although the mother contended that Dr A’s report was prepared without the assistance of “terms of reference”, it was not contended that it was otherwise flawed and no application was made by the mother to have her Honour exclude the report from the evidence in the case. What importance or weight is given to any or all these reports and the opinions contained in them will be a matter for the trial judge. No error has been demonstrated.
The mother challenges her Honour’s Order 5 to set the matter down for hearing. We observe that it was agreed at the hearing of the appeal that the date set for hearing was in August 2016. Quite how the mother could contend that her Honour was “rushing the matter on” is difficult to understand. The mother complains that there are deficiencies in the evidence, however, it is open to her to seek directions or interim orders. Her Honour was entirely correct, especially given the age of the proceedings, to set them down for hearing.
Finally, the mother challenges her Honour’s order that Ms W prepare an updated family report. As already mentioned, notwithstanding her Honour’s order, Ms W did not in fact prepare the updated report, and it was prepared by another family consultant. Despite this, the mother pressed her appeal on the basis that the first report of Ms W was flawed and might be relied on. This point has already been considered by us in the context of the mother’s appeal against the trial judge’s refusal to recuse herself and no error has been demonstrated.
For those reasons and when we consider the mother’s argument in relation to each of the four orders from which she appeals, it is apparent that this appeal is also entirely without merit and will be dismissed.
Applications in an appeal
The mother filed two applications in the appeals, each seeking to adduce further evidence. The application filed on 16 May 2016 seeks to adduce a report dated 12 October 2015 which, it was said, related to an injury to the child E’s back and the father cancelling appointments being “third party proof of violence at worst and/or neglect at best at [the father’s] hand”. It also sought to adduce a family report dated 14 January 2016 and finally contended; “It is imperative that [the father] be psychiatrically assessed, and admitted into anger management and parenting classes as a matter of urgency.”
The admission of evidence on an appeal is constrained. In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ considered the power of this court to admit further evidence. At page 201, at [109] their Honours observed that the exercise of the power is remedial in nature, to give the Full Court discretion to receive further evidence where “that evidence, if accepted, would demonstrate that the order under appeal is erroneous.” The evidence sought to be admitted (apart from the family report), is likely to be controversial and for that reason alone warrants the refusal of the application. We are mindful too that a final hearing of the parenting issues has not yet taken place and the appropriate place for the admission of this evidence is before a trial judge.
Leave was given to the mother to file out of time the other application seeking to adduce further evidence. No part of the document which was the subject of the application falls within the category as described by CDJ.
Finally, given that the appeals have no merit, there can be no basis for admitting the evidence.
The applications will be dismissed.
Costs
The question of costs on an appeal is governed by s 117 of the Act.
As is customary we sought the parties’ submissions on the issue of costs in the appeal to save them the time, trouble and expense of returning to make those submissions once the appeal has been determined.
In the event that the appeal failed, the ICL sought a costs order on the basis that the appeals have been wholly unsuccessful and unmeritorious. In addition to oral submissions, we had the benefit of substantial written submissions prepared by the ICL. Counsel for the ICL sought costs in a fixed sum of $1,800.00. This sum represents a grant from Legal Aid ACT.
The mother opposed the order saying that she is only in part time employment and is required to repay by instalments child support overpayments.
Even taking the mother’s financial circumstances into account we are of the view that she should be ordered to pay the ICL’s costs of the appeal because the appeals were wholly unsuccessful and were entirely without merit.
We will thus make the order sought by the ICL.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Aldridge JJ) delivered on 9 June 2016
Associate:
Date: 9 June 2016
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