JABBAR & GADE - [2019] FamCAFC 14

FAMILY COURT OF AUSTRALIA

JABBAR & GADE

[2019] FamCAFC 14

FAMILY LAW – APPEAL – PARENTING – Unacceptable risk of harm – Where the appellant mother asserts the primary judge failed to consider evidence relating to the alleged risk of harm she posed to the children as “fake” – Where findings made by the primary judge to accept video footage and text messages as authentic were open on the evidence – Admissibility of evidence under s 69ZT(1) of the Family Law Act 1975 (Cth) – Where the primary judge was correct to reject the mother’s assertion that video footage was inadmissible because the recording device had not been produced to her for forensic examination – Where video footage relevant and probative – Where no occasion arose for the primary judge to consider whether the respondent father or paternal grandmother were in contempt of court – Where the primary judge correctly exercised discretion – Where grounds of appeal lack merit – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge expressly considered the appellant mother’s financial situation when making property settlement orders – Where an incomplete transcript was provided so not all oral evidence adduced at trial was available on appeal – Where it was open on the evidence for the primary judge to make findings which notionally added-back to the parties assets – Where the primary judge correctly exercised discretion – Appeal dismissed.

FAMILY LAW – APPEAL – STAY – Appeal from refusal to grant a stay of the final parenting and property orders – Where the appeal is futile – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the respondent and the Independent Children’s Lawyer seek costs against the appellant – Where the appellant has modest financial circumstances – Where no circumstance under s 117(2A) of the Act justifies a departure from s 117(1) of the Act – Appellant and respondent to bear their own costs – Appellant ordered to pay the Independent Children’s Lawyer’s costs in a fixed amount.

Evidence Act 1995 (Cth) ss 48, 140, 141
Family Law Act 1975 (Cth) ss 69ZM, 69ZT, 117

Christmas v Nicole Bros Pty Ltd (1941) 41 SR (NSW) 317
Dublin, Wicklow and Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35

APPELLANT:

Ms Jabbar

RESPONDENT:

Mr Gade

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Newcastle Family Law

FILE NUMBER:

NCC

2265

2015

APPEAL NUMBERS:

EA
EA

71
91

of
of

2018
2018

DATE DELIVERED:

8 February 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Austin and Gill JJ

HEARING DATE:

26 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2018
2 July 2018

LOWER COURT MNC:

[2018] FCCA 1056
[2018] FCCA 2041

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Bithrey

SOLICITOR FOR THE RESPONDENT:

NLS Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Newcastle Family Law

Orders

Appeal No. EA 71 of 2018 is dismissed.
The appellant shall pay the Independent Children’s Lawyer’s costs of and incidental to Appeal No. EA 71 of 2018, fixed in the sum of $4,686.
Each party shall bear his and her own costs of Appeal No. EA 71 of 2018.
Appeal No. EA 91 of 2018 is dismissed.
No order as to costs in Appeal No. EA 91 of 2018.

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 Jabbar & Gade 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

SYDNEY

Appeal Number: EA 71 of 2018; EA 91 of 2018
File Number: NCC 2265 of 2015

Ms Jabbar

Appellant

And

Mr Gade

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 11 May 2018, a judge of the Federal Circuit Court of Australia pronounced final orders between the mother and the father to determine their disputes in respect of their children and the division of their property under Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”). The orders were appealed by the mother (Appeal No. EA 71 of 2018). Although the appeal encompassed the property settlement orders, it was principally directed to the parenting orders.
On 2 July 2018, the primary judge dismissed the mother’s various applications, which were treated by her Honour as applications to stay the orders made on 11 May 2018 pending the determination of her appeal. The orders dismissing those applications were also appealed by the mother (Appeal No. EA 91 of 2018).
The two appeals were heard together. The first appeal is dismissed for the reasons which follow. In that event, although the mother could not bring herself to make the concession during the appeal, the second appeal was futile and it is also dismissed. The mother should pay the Independent Children’s Lawyer’s costs, but otherwise the parties should bear their own costs.

Relevant background

The father commenced the underlying proceedings on 21 August 2015, shortly after the parties finally separated, by seeking urgent parenting orders. Following an interim hearing on 31 August 2015, the primary judge made orders for the children to live with the father and to spend only supervised time with the mother.
Reports were later prepared by the single expert psychiatrist appointed in the proceedings. Alarmed by the contents of the single expert’s second report, released in March 2017, the Independent Children’s Lawyer immediately applied to discharge the interim order requiring the children to spend supervised time with the mother. In essence, the primary judge granted the application, suspending the order until the trial.
The trial commenced in August 2017, but was not complete until March 2018. Orders were pronounced and reasons delivered on 11 May 2018. At that time, the two children were respectively aged 12 and six years. Orders were made for the children to continue living with the father and for him to have sole parental responsibility for them. The orders expressly provided the children were to spend no time at all with the mother and would not be able to communicate with her. The mother was additionally restrained from approaching the children.
As would be obvious from that short summary, the parenting orders were draconian. They effectively eliminated the mother from the children’s lives and, given their relatively young ages, ensured she will not re-enter their lives for many years. Orders to that effect were sought by both the father and the Independent Children’s Lawyer and accorded with the single expert’s recommendations.
The primary judge found such harsh orders were justified because of the psychological harm to which the children had already been subjected by the mother and the unacceptably high risk of physical harm (including lethal harm) to which they were exposed by her. The primary judge found:
302.I accept [the single expert’s] opinion that the mother has exposed the children to psychological harm during the marriage by her style of parenting.
…
304.The risk to the children is not limited to psychological harm. [The eldest child] was assaulted in March 2013 and [the single expert] went so far as to say during cross-examination that when the mother was angry she objectified the children and he expressed the view that she could hurt and even kill them to hurt the father. He said that he was so concerned about this that he recommended that consideration be given to releasing the judgement [sic] differentially to the parties.
305.[The single expert] also said that he would support the father being permitted to move to a location of his choice and there is certainly a considerable risk that the mother will not abide by court orders that she stay away from the children.
…
309.I am satisfied on the basis of the evidence in this case including but not limited to [the single expert’s] evidence that the children would be at unacceptable risk of harm if they spent time with the mother, supervised or unsupervised, and that there is a risk of harm to the children even if the court makes a no time order.
…
323.The third problem for the mother is that the end of the marriage led to the preparation of a report by [the single expert] and he was so disturbed by the evidence as a whole and by what he found to be the nature of the relationship between the mother and the children that he formed the view the children would be at unacceptable risk of physical and psychological harm if they spent time with her.
…
325.[The single expert] specifically recommended against limited direct contact and communication between the children and the mother.
The evidence which underpinned those findings was voluminous, but the evidence which pre-occupied the mother at trial (and on appeal) and which therefore featured prominently in the primary judge’s reasons was:
(a)Some video footage supposedly taken by the father on 9 March 2013, which allegedly depicted the mother threatening and assaulting the eldest child; and
(b)Two text messages allegedly sent by the mother to the father on 25 July 2015 in which she threatened to kill or cause catastrophic physical injury to the children.
The video footage comprises two separate recordings, each several minutes long. The video included audio recording in the Hindi language, which was translated for the purpose of evidence. The father identified the figures in the video as the mother and both children, as did the primary judge and the single expert when they independently viewed the footage. The primary judge noted the mother denied in evidence she was the woman depicted in the video, but she did not contend, either in her grounds of appeal or submissions, that it was not open to the primary judge to find it was her. It was open to so find.
On the first video, the mother is shown ranting in a state of extreme agitation. She rails about the father wanting some proprietary interest in two real properties in India. Among other things, the mother refers to “killing you all three [sic]…after chopping you”, which the father imputes was a reference to her willingness to kill him and the two children. On the second video, the mother is depicted raining blows on the eldest child’s back and telling her “I will not leave you alive” and also saying, apparently to the father, “I will not leave this girl alive”, during which incident the eldest child is distressed. The primary judge described the harrowing contents at greater length in her reasons.
As for the text messages, the primary judge also recited their contents in the reasons. They included:
This is a warning…I will set the house on fire, shutting myself with the children inside this house…Now, I don’t have any limits…
…
I need response [sic] within five minutes otherwise I’m standing next to the gas. I will set fire to this whole house…I have boiling oil and your son is standing beside me. I will pour this wok over him.
The essential thrust of the mother’s appeal was that the video footage and the text messages were “fake evidence” and she was denied the chance to authenticate it, albeit she couched the grounds of appeal in terms of the primary judge’s refusal or failure to consider certain facts or to exercise discretion correctly (Grounds 1 to 6).
Another ground of appeal contended the primary judge’s failure to correctly exercise discretion when making property settlement orders under Part VIII of the Act, given the mother’s “current financial situation” and her “urgent need [for] accommodation” (Ground 7).
The last ground of appeal complained the primary judge failed to consider that the father and the paternal grandmother acted in contempt of court by “providing wrong information” to, and “hiding relevant important information” from, the court (Ground 8).

Grounds 1 to 6

The text messages

The text messages were not elicited in evidence in a vacuum. The father gave evidence that he received them whilst he and the mother were both inside the family home. He was upstairs and she was downstairs. He received the messages on his mobile telephone, which displayed the texts as being received from another mobile telephone subscribed to him but used by the mother. He raced downstairs and saw the mother pulling both children towards the stove, screaming “I’ll pour boiling oil on you”. The children were shaking, crying and trying to escape. He stepped between the mother and children and defused the situation. The primary judge accepted that evidence and the mother did not contend the findings of fact were wrong.
The father contacted the child welfare authority to raise his concerns about the mother’s behaviour, but then shortly afterwards reported the matter to police, following which he separated from the mother and took the children with him. No action was taken by the police at that point in time.
The mother’s behaviour at that time suggested she was not thinking clearly. She rang the father’s mobile telephone and told the eldest child, in an elevated emotional state, she was leaving for India that afternoon and would not see her again. Only a couple of days later, the mother left a voice message for the father telling him she wanted to say one last goodbye to the children. Later that night, the father was contacted by a friend who informed him the mother was threatening to hang herself unless he let her see the children.
The mother gave contradictory evidence about the text messages in the proceedings before the primary judge, sometimes admitting she sent them and at other times denying she did so. Importantly, the primary judge found the mother admitted she sent the text messages to the Family Consultant, to her own psychiatrist, and to the single expert. The mother did not contend the findings that she made those admissions were not open. Significantly, the eldest child independently confirmed to both the Family Consultant and the single expert the mother’s threat to burn her with hot oil.

The video

Although the father alleged he recorded the video footage in March 2013, he did not take it to the police until February 2016, several months after the parties’ final separation. The police subsequently charged the mother with assaulting the eldest child during the incident depicted on the video and simultaneously charged her with “stalk intimidate” in relation to the text messages sent in July 2015. She was initially convicted of the offences, but was later acquitted on appeal.
The mother denied she was the woman depicted in the video, both to the primary judge and in the parallel criminal proceedings, but she admitted to her own psychiatrist she was filmed by the father in March 2013, in obvious reference to the video footage. The primary judge found the mother was evasive about the filmed incident during her cross-examination, but she was still impelled to admit the woman and children in the video looked like her and the parties’ children. The primary judge found she was the woman, which finding the mother did not contend was not open.

Admissibility and use of the evidence

At the outset, it should be recognised the aspect of these proceedings comprising the parties’ dispute over the children were “child-related proceedings”, to which Division 12A of Part VII of the Act applied (s 69ZM(2)(a)). Consequently, the application of s 69ZT(1) of the Act to that part of the proceedings ousted the application of large tranches of the Evidence Act 1995 (Cth) (the “Evidence Act”).
The primary judge recorded that the mother objected to the admissibility in evidence of both the video footage and the text messages, but that was not so. The mother only objected to the admissibility of the video footage. She had no objection to the admissibility of the text messages, though she prevaricated over her authorship of them.
The content of the text messages was recited in the father’s trial affidavit, to which the mother took no objection. She also read the text messages into evidence when she was cross-examining the father about them, she tendered in evidence the father’s former affidavit containing the content of the messages (Exhibit F), and she tendered in evidence the father’s police statement, made on 16 February 2016, to which the text messages were annexed (Exhibit G). It must follow that the content of the text messages was correctly received in evidence.
As for the video footage, the father deposed to the circumstances surrounding his recording of it, which evidence was certainly admissible. He was able to describe what he saw, heard and did at the time the footage was recorded, which evidence the primary judge was entitled to accept. The video footage, transcript and translation were separately tendered in evidence as exhibits by the father and the Independent Children’s Lawyer (Exhibits C, PP and QQ). Those documents were correctly received in evidence over the mother’s objection, for the reasons which follow.
The primary judge noted the mother objected to the admissibility of the evidence on two bases: first, she was ultimately acquitted of the charges brought by police against her in relation to the incidents associated with the video footage and the text messages, and second, the father failed to produce for forensic examination the mobile telephone used to record the video footage and receive the text messages.
In the criminal proceedings, the District Court judge found the video footage and photographs of the text messages were admissible in evidence over the mother’s objection. Despite the admissibility of the evidence in the prosecution, the mother was still acquitted of the charges because:
(a)In respect of the offence evident from the text messages, it was held there was reasonable doubt as to whether it was the mother who sent the messages because, against her denial, the father’s uncorroborated assertion she did send them was not enough to eradicate doubt.
(b)In respect of the offence depicted in the video footage, there was a factual dispute about whether the video had been edited, the original device on which it was recorded was not available for forensic examination, and there was no independent translation of the sound on the video. Additionally, the mother alleged an alibi, in that the eldest child was at another event on the day the video recording was allegedly made.
Just in case the mother is labouring under misapprehension, it is useful to observe her acquittal on the criminal charges did not mean she was innocent; merely that the offences were not proven against her beyond reasonable doubt. The standard of proof which applied in the criminal proceedings was much more exacting than the civil standard of proof which applied in the proceedings conducted before the primary judge (ss 140, 141 of the Evidence Act). The primary judge was able – indeed obliged – to analyse the admissible evidence to make factual findings on the civil standard of proof, as her Honour correctly recognised, which would then inform conclusions about the alleged risk of harm posed to the children by the mother.
As the primary judge explained in her reasons, the evidence adduced before her was much more comprehensive than that adduced in the criminal prosecution. Her Honour was able to make the comparison because the appeal judgment of the District Court judge was tendered in evidence (Exhibit KKK).

In respect of the text messages, there was no doubt the messages emanated from the mobile telephone used by the mother; the mother made admissions about sending some text messages referring to hot or burning oil; the primary judge found the father’s evidence superior to the mother’s; and the mother made admissions about sending those text messages to various independent persons. There was also the eldest child’s confirmation to both the Family Consultant and the single expert of the mother’s threat to burn her with hot oil.
In respect of the video footage, the primary judge had a translation of the sound recording procured by the Independent Children’s Lawyer, the accuracy of which was not disputed; the mother admitted the house in which the video was taken was “maybe” her house, the children looked like their children, and the woman looked like her; the mother adduced no evidence to corroborate her alibi about the eldest child’s absence at some other event; and the mother admitted to independent persons she was video-recorded by the father in March 2013. Although not specifically reasoned by the primary judge, it was also significant that the woman depicted in the video was ranting about the father wanting some form of proprietary share in “both of my flats [in India]”, given the parties were arguing over the existence of two apartments in India as part of their property settlement dispute. In fact, at one point during the mother’s cross-examination, she admitted “I’m the person lady in that [video]”, although she then added she never did that. Thus, there was a firm foundation in the evidence to find it was the mother depicted in the video.
More evidence of better quality, to which the lower civil standard of proof was applied, easily enabled the primary judge to find the mother probably assaulted the eldest child in March 2013 (as depicted in the video footage) and probably sent the subject text messages to the father in July 2015.
The fact the father’s original mobile telephone was never forensically examined did not affect the admissibility of the evidence. The mother made the same objection to the District Court judge in the criminal proceedings and her objection on those grounds was overruled. Her eventual acquittal had nothing to do with the alleged inadmissibility of the evidence.
The video footage and the text messages were stored in the father’s mobile telephone, but he transferred the digital data from the mobile telephone to a computer and stored it on a USB stick. The data was then wiped from the mobile telephone, which the father then gave to his mother for her use.
During the litigation, but prior to trial, the mother pursued the father’s production of the original mobile telephone, but it was not produced. The mother suspected he was avoiding its production for fear its examination might reveal some abnormality or lacuna in his evidence implicating her in the video recording or the text messages. In reliance upon mobile telephone records (Exhibit JJJ) and the transcript of evidence given by a police officer in the criminal proceedings (Exhibits H and L) tendered by the mother, she asserted the father lied about his possession of the telephone, but the records did not necessarily contradict the father’s evidence.
He asserted he acquired a new mobile telephone and gave the original mobile telephone to his mother in December 2015. Exhibit JJJ proves the telecommunication service for the original mobile telephone continued to be invoiced in the father’s name after December 2015, but he did not assert otherwise in his evidence. During his cross-examination, prior to the mother’s tender of Exhibit JJJ, the father conceded he paid for the telecommunication service connected to the telephone by direct debit from his banking account. He said he was unaware of the subpoena issued by the mother to the telecommunication service provider, so it could not be reasonably suggested he tailored his evidence to suit what he knew was in the telecommunication records. The father deposed in his affidavit the mobile telephone was “in India with my family”, though he was unspecific as to when, but it was in his mother’s possession “since she returned to Australia in about February 2017”. In cross-examination, the father confirmed his mother left for India in December 2016 and returned to Australia in early February 2017.
The father’s mother gave evidence in cross-examination to the effect she gave the mobile telephone to her husband, which he then had in India in the period between January and June 2016, but the SIM card for the telephone remained in Australia for that period because it was inoperable in India. The evidence about the telephone first being taken to India in January 2016 was not likely correct, since Exhibits H and L revealed the police took screenshots from the mobile telephone when it was physically in Australia in February 2016. When the father’s mother travelled to India between December 2016 and February 2017, she also took the mobile telephone with her but she did not say whether or not the SIM card remained in Australia then. She was not asked.
Exhibit JJJ were communications records related to a SIM card and a particular telephone number, not to any particular mobile telephone. The records showed the telecommunication service linked to the SIM card was used in Australia fairly constantly in the period between December 2015 and August 2017. However, if, as inferentially appears from the evidence, the SIM card always remained in Australia, then it was presumably available for use in another mobile telephone, which could plausibly account for the continuing provision of the telecommunication service connected to it. That prospect was not addressed in the evidence. The fact the mobile telephone was produced by the father to police in February 2016 does not mean it was not taken to India shortly thereafter, as the father’s mother deposed, even if she was inaccurate about the date her husband first took it to India.
In any event, even if it was accepted the father (and/or his mother) had given incorrect or false evidence as to the location of the mobile telephone, this would not require all of his or her evidence to be rejected. It is well established that a judge can accept some part of a witness’ evidence and reject other parts (Dublin, Wicklow and Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322). Furthermore, such a finding about the evidence given by the father and/or his mother would not undermine the other evidence supporting the veracity of the contents of the video.
Regardless, the mobile telephone was available to produce for inspection at the mother’s request shortly before the trial. In his trial affidavit the father deposed:
71.…The iPhone has been in my mother’s possession since she returned to Australia in about February 2017. I can provide this iPhone to the Court.
At the commencement of the trial, the mother raised the issue of the availability of the mobile telephone and its forensic examination. She said to the primary judge:
As you know, your Honour, in my case there are two important things against me: those alleged text messages and video.
…
So, your Honour, I request you to please provide those devices to me so that I can arrange a forensic analysis report of that device and – because, your Honour, it is a very, very ..... fact of this case, and I really request you, your Honour, to adjourn this hearing and give me time to arrange a forensic analysis report of that device; that’s my point, your Honour…
(Transcript, 7 August 2017, p 6 ln 44 to p 7 ln 19)
Evidently, the mother was seeking an adjournment of the trial to give her more time within which to have the father’s mobile telephone forensically examined. The primary judge refused the adjournment application, but not unconditionally. Her Honour told the mother she would consider making an order requiring the father to produce the mobile telephone directly to a forensic expert (rather than directly to her), but only if she asked for such an order. Her Honour also told the mother it was important to at least start the trial because of the antecedent delays, but she would re-consider an adjournment at some later point in the trial if the mother still considered she needed it. Importantly, as the primary judge recorded in the reasons, the mother did not thereafter make another application to adjourn the trial, nor did she seek an order requiring the father to produce his mobile telephone directly to a forensic expert for examination.
After the evidence in the trial was closed, the mother filed another Application in a Case on 12 October 2017 seeking an order for the father’s mobile telephone to be produced directly to her, allowing her to then arrange her own forensic analysis of it. The primary judge referred to the application in the reasons, which application and supporting affidavit the mother tendered as an exhibit in the second appeal (Exhibit 1). The application was dismissed by the primary judge on 18 October 2017, rejecting the mother’s assertion that the video footage was inadmissible in evidence simply because the mobile telephone had never been produced for forensic examination. Her Honour was correct to so hold. The video footage was admissible because it was relevant and probative, not because s 48 of the Evidence Act enabled it, since that provision was ousted by application of s 69ZT(1) of the Act.
In any event, the Independent Children’s Lawyer arranged for the video footage to be forensically analysed by an expert before the trial. His evidence was not the subject of any challenge. The expert examined the footage on the USB stick with which he was provided. He opined the video footage was probably taken on the date and at the times alleged by the father, though he said it was possible the times and dates may be fabrications. To exclude that possibility he would need to examine the mobile telephone on which the video was originally recorded. The primary judge was satisfied on the balance of probabilities, conformably with the civil standard of proof, the events depicted in the video footage involving the mother and the children occurred on the date and at the time alleged by the father. The finding was clearly open.
Irrespective of whether or not the father mischievously frustrated the mother’s attempts to obtain and examine the mobile telephone well in advance of the trial, the real question is: what would it have achieved?
Even if the video footage was taken by the father at some time other than at about 10.30 am on 9 March 2013, as he alleged, the evidence still enabled findings that the persons portrayed in the video were the mother and the children. The apparent ages of the children would have enabled an approximation of when the video was taken. The mother’s violent assault of the eldest child was not a fabrication. Any error about the time or date of the video footage would not, of itself, render the actual content of the visual and audio recording a fabrication, as the mother implied.
As for the text messages, they were identical to the ones adduced in evidence before the Local Court and District Court of NSW in the criminal proceedings. The District Court held the text messages were admissible in evidence in the criminal proceedings, notwithstanding the lack of forensic examination of the mobile telephone, and the mother actually acceded to the admissibility of the text messages in evidence before the primary judge. There was no reasonable scope for argument that the text messages were not sent to and received by the father at the time he alleged. It was only the mother’s authorship of the text messages which was in dispute. The primary judge’s finding that the mother sent the text messages was open on the surfeit of other evidence.

Conclusions

It is not true the primary judge “refused to consider” that, during the trial, the mobile telephone was “available to the court” and the video footage and text messages were not stored on the mobile telephone (Ground 2). Her Honour was well apprised of those facts. The primary judge knew the father deposed the mobile telephone was available to produce for independent and impartial inspection, knew the father deposed he wiped the data from it in December 2015, and knew the mother applied for the reprieve of an adjournment to have the mobile telephone forensically examined. Such evidence was “considered” by the primary judge, but it did not result in the outcomes for which the mother hoped. The trial was not adjourned, and the video footage and text messages influenced the parenting orders eventually made. In neither respect was it demonstrated the primary judge was in error.
It is not true the primary judge “did not consider” the father produced “fake evidence” of the text messages and the video footage (Ground 3). The false premise of this ground is that the text messages and video footage were proven to be “fake”. The primary judge clearly understood the mother contended the text messages and video footage were “fake”, but it was well open to find on the evidence that both the text messages and video footage were authentic. That being so, the ground fails.
It is not true the primary judge “refused to verify the authenticity” of the text messages and video footage (Ground 4). The primary judge only refused to grant the adjournment of the trial sought by the mother. Even then, the primary judge left open the option of an adjournment if the mother sought an order requiring the production of the mobile telephone directly to an expert for examination rather than directly to her, but no such application was ever made by the mother. The father deposed the text messages and video footage were genuine and an expert confirmed the probable authenticity of the video footage. Their evidence was accepted as reliable by the primary judge, which findings were open, so this ground fails.
It is not true the primary judge “failed to use her discretion [to realise]” that acceptance of the text messages and video footage as genuine would result in orders separating the children from the mother and “completely destroy” their relationships with the mother (Ground 5), so this ground must also fail. Unfortunately for the mother, the primary judge was acutely conscious of how she might need to be eliminated from the children’s lives. So was the mother. For example, during the mother’s cross-examination:
(a)She said:
…I can lose my kids custody just because of this reason that then we were going to display the video …. It is a big enough reason for me to lose my kids custody…
(Transcript, 10 August 2017, p 124 ln 32-34)
(b)She was asked by counsel for the Independent Children’s Lawyer:
You understand there’s a real prospect that you may never spend time with your children again during their childhood?
to which she replied:
Yes
(Transcript, 10 August 2017, p 181 ln 1-2)
(c)The primary judge remarked to her:
Ms Jabbar, you really need to think very carefully about this because it may…make a difference…But if you continue to maintain that you didn’t do those things…the only option might be the option that [the single expert] recommends. On the other hand, if you can look at that and say…“…that is me. I know I’ve got a problem. I know I’ve got something I need to fix,” that might make a big difference to the outcome to the case?
(Transcript, 10 August 2017, p 182 ln 46 to 183 ln 11)
The mother contended the primary judge “failed to use her discretion [to realise]” that acceptance of the text messages and video footage as genuine would result in her “permanent loss…of earning capacity” (Ground 6). This ground must be dismissed for two fundamental reasons. First, the primary judge did not link in any way the evidence of the text messages or the video footage to the mother’s earning capacity, which capacity could only feasibly relate to the property settlement orders made between the parties under Part VIII of the Act. Second, the mother failed to demonstrate in the appeal any link between that evidence and her future earning capacity, either in her written or oral submissions.
The overarching ground of appeal, which contended the primary judge “failed to use her discretion in making these orders” (Ground 1), must also fail. Clearly, the orders made by the primary judge under both Parts VII and VIII of the Act resulted from her Honour’s exercise of discretion. The solitary submission the mother directed to this ground was written and it stated:
At the time of final trial, in August 2017, “Original Mobile Phone” was available and accessible to the court; without any text messages dated 25-07-15 and video dated 9 march 2013 [sic].
Grounds 1 to 6 lack merit and will be dismissed.

Ground 7

This ground of appeal asserted the primary judge “failed to use her discretion” to consider the mother’s “current financial situation and urgent need of an accommodation to sustain in Australia” (sic).
The written submissions the mother directed to this ground of appeal touched upon several issues raised in the evidence, and in particular:
(a)Her withdrawal of money from a joint account in August 2015;
(b)The father’s withdrawal of money from a “matrimonial account” over a period of 18 months between 2013 and 2014;
(c)The Court’s refusal to entertain her application for spousal maintenance in or about May 2016; and
(d)The beneficial ownership of two real properties in India.
Leaving aside the lack of apparent correlation between the ground of appeal and the written submissions, the ground of appeal was misconceived and none of the mother’s submissions was meritorious.
As for the ground of appeal, the primary judge expressly considered the question of the mother’s earning capacity, her lack of dependents, her non-payment of any child support to the father, and the property and superannuation she would retain under the property settlement orders, so her “financial situation” was considered. There was no discrete discussion of her need for accommodation, but the primary judge’s reasons made plain the mother would relinquish all proprietary interest in, and would need to vacate, the former family home. The orders required the mother to transfer to the father her interest in that property and another, subject to him refinancing the debt secured over the two properties and his payment to her of $81,956.82 in cash. Inferentially, the mother was expected to use her share of the property to find alternate accommodation.
The father’s alleged withdrawal of money from an account during 2013 and 2014 was immaterial. The parties did not even separate until August 2015, so the withdrawals occurred during their cohabitation, about which the mother must have been actually or constructively aware. In one of her trial affidavits, the mother deposed the father “used to withdraw cash from our family bank account and transfer big amounts of money to his family members…”, but her evidence on the issue was otherwise devoid of detail and she did not cross-examine the father on the facts. Without attendant detail and absent its promotion as an issue of significance, the mother’s allegation was like a straw in the wind. In such circumstances, there was no failure by the primary judge to take into account a material consideration, nor did her Honour’s discretion miscarry.
The mother’s withdrawal of money from a joint account immediately upon separation was, however, a salient issue. In cross-examination, the mother admitted she took $127,000 from the joint bank account several days after the parties’ final separation. She alleged she spent the money “on different lawyers” and to pay other “bills”. The primary judge found the mother also withdrew an extra $5,000, making $132,000 in all, and the withdrawals should be notionally added-back to the parties’ assets. The finding was open to the primary judge. The mother did not contend it was not. In the appeal, she made no oral submission on the point and her written submission did not make clear the nub of her complaint.

At trial, the mother made no application for spousal maintenance. Any interim order, made in May 2016 or at any other time, dismissing an interim application filed by the mother seeking spousal maintenance, was not the subject of the appeal so no more need be said about it.
During cross-examination, the mother admitted two real properties in India were acquired in her name during the marriage at an overall cost of six million Indian rupees. She said she and her father paid one-half of the cost and the father paid the other one-half of the cost. However, the mother alleged that, at the time of trial, she no longer owned the two properties. She asserted she did not then know the identity of the owner of either property. She denied she signed any documents to transfer the properties to any other person. The transcript provided for the appeal was incomplete so not all of the oral evidence adduced at trial was available for perusal, but the primary judge found the mother was the current owner of the properties and they should be notionally added-back to the parties’ assets, even though the mother alleged that following separation she gave one property to each child beneficially. The finding was open to the primary judge. Again, the mother did not contend it was not. Again, in the appeal, she made no oral submission on the point and her written submissions did not explain the gravamen of her complaint.
This ground of appeal therefore fails.

Ground 8

This ground of appeal asserted as follows:
Trial judge refused to consider that by providing wrong information to court and hiding relevant important inforamtion [sic] from court, father and [paternal] grandmother did the act of “Contempt of Court”.
The factual platform for this opaque complaint was submitted to be the father’s deceit about the location and use of his original mobile telephone. The mother contended his deceit was proven by the irreconcilable inconsistencies revealed between the father’s evidence in an affidavit filed in February 2017, his trial affidavit filed in August 2017, and the contents of the telecommunications records she tendered (Exhibit JJJ). For reasons already explained in relation to Grounds 1 to 6, despite the mother’s ardent belief to the contrary, there is no necessary inconsistency between those various pieces of evidence.
Significantly, the primary judge found the father’s evidence to be generally reliable. By contrast, her Honour found the mother’s veracity was impeached for various reasons. Her Honour found no basis in the evidence to conclude the father (or the paternal grandmother) provided “wrong information” to the court or withheld “important information” from the court, in which event no occasion arose for the primary judge to consider whether the father was in contempt. For clarity, there was no contempt application pending before the Court at the time of trial. The mother did file numerous contempt applications against the father during the pendency of the litigation, but the parts of the transcript provided for the appeal reveal the mother submitted to the dismissal of such applications.
The mother cited Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245 in support of the proposition that the father’s conduct in these proceedings amounted to contempt of court, but it afforded her no support. That case establishes only that a charge of contempt requires an intentional interference with the administration of justice and will be made out if it is shown the contemnor intends to obstruct justice by suppressing the production of documents which should otherwise be produced in response to a subpoena. In that case, the High Court held there was no contempt, since it is not contempt to refrain from producing a document which need not be produced under the terms of the subpoena. It could not be reasonably contended on the facts of this case, as they were found by the primary judge, that the father intended to interfere with the course of justice.
In her written submissions, the mother also made miscellaneous complaints about the primary judge refusing her request to receive in evidence the recording of prior proceedings between the parties, refusing her request to issue additional subpoenae, refusing her Application in a Case filed on 12 October 2017, and failing to heed her complaint about an unidentified alteration to orders made in December 2015. However, they were all complaints about procedural decisions made by the primary judge which had no connection with this ground of appeal directed to the father’s alleged misconduct. The mother’s written summary of argument was not an opportunity to simply vent her dissatisfaction with any aspect of the litigation to which she could turn her mind.
The mother also submitted in writing that the father and paternal grandmother made “fake” complaints about her to staff at the eldest child’s school and to the child welfare authority, but to make good on those submissions she referred only to two subpoena packets. The documents produced on subpoena and stored in those packets to which she was referring were not tendered in evidence or, if they were tendered, the exhibits were not identified in the appeal. The mother failed at the first hurdle to demonstrate to the primary judge that the complaints made about her to the school staff and child welfare authority were “fake” and, given the absence of any such finding, also failed at the second hurdle to demonstrate in the appeal that the primary judge erred by not making such findings. Of course, that is to say nothing of the mother’s submissions having no obvious connection to the ground of appeal.
Ground 8 fails.
The mother’s remaining written submissions, collected under the sub-heading “Other issues”, have not been taken into account as they do not purport to correlate with any of the eight grounds of appeal. Airing a miscellany of unconnected grievances does not advance the appeal.

Conclusion and costs

The primary appeal lacks merit and will be dismissed.
As mentioned at the outset, the stay appeal will also be dismissed. Several reasons motivate that result. First, one ground of appeal contemplates the primary appeal may not be heard and determined until 2019, but it was heard and determined promptly, making the stay appeal futile. Second, some of the grounds of appeal simply replicated the grounds stated in the primary appeal. Third, the ground of appeal concerning the primary judge’s refusal to consider an order for the children to spend supervised time with the mother was not directed to the correctness of her Honour’s discretionary decision to not stay the orders made at trial. Fourth, the mother’s written summary of argument on the stay appeal was indistinguishable from her written summary of argument on the primary appeal and no oral submissions at all were directed to the stay appeal.
The father and the Independent Children’s Lawyer both sought costs if the primary appeal was dismissed, which applications were resisted by the mother.
As the father rightly contended, the mother’s appeals were wholly unsuccessful (s 117(2A)(e) of the Act), but her modest financial circumstances loomed large as a countervailing consideration (s 117(2A)(a) of the Act). The primary judge found she only has casual employment, the income from which is supplemented by a Newstart allowance. As for assets, she will receive about $81,000 from the father, but she will need that money to accommodate herself. Otherwise, according to the primary judge’s findings, she has the two properties in India, assumed to be worth AUD $119,000, the cash of $132,000 she took from the joint account in 2015, which she said she spent, a car, and some superannuation to which she cannot yet resort. No other factor prescribed by s 117(2A) of the Act was addressed by the parties. We see no persuasive reason to depart from the orthodoxy of each party bearing his and her own costs of the proceedings (s 117(1) of the Act).
However, the Independent Children’s Lawyer is not a party to the proceedings and is not subject to the same presumption that he or she should bear his or her own costs. The expense of the Independent Children’s Lawyer is inevitably borne by a legal aid authority and is consequently a burden on the public purse. The Act expressly enables costs orders to be made in favour of Independent Children’s Lawyers (s 117(3)), subject to provisos (s 117(4)), for which purpose the legal aid funding of the Independent Children’s Lawyer must be disregarded (s 117(5)), in the sense that he or she should be presumed to be unfunded. Here, the Independent Children’s Lawyer sought very modest costs of only $4,686, which the mother should pay. Her payment of that relatively small amount from the cash sum she is soon due to receive from the father will not cause her to suffer such financial hardship so as to preclude the costs order being made against her (s 117(4)(b)).

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Austin & Gill JJ) delivered on 8 February 2019.

Associate:

Date: 8 February 2019