Jarrah & Fadel (No 2)
[2015] FamCAFC 161
•18 August 2015
FAMILY COURT OF AUSTRALIA
| JARRAH & FADEL (NO. 2) | [2015] FamCAFC 161 |
| FAMILY LAW – APPEAL – CHILDREN – Where the proceedings at first instance were undefended – Where the father filed no evidence at trial – Where the father sought multiple adjournments prior to the trial – Where the father’s notice of appeal does not contain competent grounds of appeal – Whether the trial judge ought to have granted the father a further adjournment – Where the trial judge was correct to determine the matter in the absence of the father – Appeal dismissed. FAMILY LAW – APPEAL – Application to adduce further evidence – Where the application on its face has no merit – Where the proposed further evidence was generally inadmissible and could not demonstrate that the judgment under appeal was erroneous – Application dismissed. FAMILY LAW – APPEAL – Costs – Where the respondent mother and the Independent Children’s Lawyer sought that the father pay their costs of the appeal – Where the appeal was wholly unsuccessful – Where the making of a costs order is warranted – Father to pay the costs of and incidental to the appeal of the mother and of the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) ss 94(2A), 117, Part VII Family Law Rules 2004 (Cth) r 22.21 |
| Fadel & Jarrah [2013] FamCA 312 |
| APPELLANT: | Mr Jarrah |
| RESPONDENT: | Ms Fadel |
| INDEPENDENT CHILDREN’S LAWYER: | Karen L Haga & Associates |
| FILE NUMBER: | PAC | 2015 | of | 2011 |
| APPEAL NUMBERS: | EA | 37 | of | 2014 |
| EA | 94 | of | 2013 |
| DATE DELIVERED: | 18 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 29 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 February 2014 |
| LOWER COURT MNC: | [2014] FamCA 85 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Eldershaw |
| SOLICITOR FOR THE RESPONDENT: | Mahony Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Sperling |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Karen L Haga & Associates |
Orders
Appeal against the orders of Johnston J made on 21 February 2014 is dismissed.
Applications in an Appeal, EA 94 of 2013 and EA 37 of 2014, are dismissed.
The Father pay the Mother’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of such agreement or assessment.
The Father to pay the Independent Children's Lawyer’s costs of and incidental to the appeal in the sum of $2,200, the costs to be paid within twenty-eight
(28) days of the date of these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jarrah & Fadel 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 37 of 2014; EA 94 of 2013
File Number: PAC 2015 of 2011
| Mr Jarrah |
Appellant
and
| Ms Fadel |
Respondent
and
| Karen L Haga & Associates |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Mr Jarrah (“the father”) appeals against parenting orders made by Johnston J on 21 February 2014 in relation to the three children of the father’s relationship with Ms Fadel (“the mother”). His Honour’s orders were made at the conclusion of a final hearing of the parenting issues in respect of which the father neither filed evidence nor attended. The hearing took place on 17 and 18 February 2014.
His Honour’s orders discharged all previous parenting orders and provided for the mother to have sole parental responsibility for the children and that they live with her. The orders specified that the father was to spend no time with the children nor attempt to spend time or communicate with them. His Honour further made orders restraining the father from approaching the children or attempting to contact them by any means and made similar orders in relation to the mother. The orders permitted the mother to change the children’s names without notice to the father and to obtain travel documents for the children and remove them from Australia.
This matter has a long and, some might observe, tortuous history which it is appropriate to set out in order to provide context to the appeal and our determination. At least part of what follows is taken from the reasons of the Full Court of 12 February 2014 Jarrah & Fadel [2014] FamCAFC 14 in dismissing the father’s application for leave to appeal against the trial judge’s refusal to vacate the hearing date of 17 and 18 February 2014.
Background
Proceedings between the parties started in May 2011 when the mother sought parenting orders in relation to the parties’ children. The trial of the application had been listed for hearing on four previous occasions; on each occasion the hearing dates have been vacated. On at least three of those occasions, it has been on the father’s request.
In April 2012 the father filed an application seeking an order that the Independent Children’s Lawyer (“ICL”) be removed. He asserted, amongst other things, that the solicitor removed documents from those produced to the court under subpoena and put them in her briefcase, effectively depriving him of access to them. That application was heard and dismissed by Collier J on 14 May 2012 (Jarrah & Fadel [2012] FamCA 569).
The final hearing of the parenting proceedings was set down for
25 March 2013, earlier dates in July 2012 having been vacated.
On 5 February 2013 Collier J determined a number of issues that were raised by the father. One of the father’s main concerns was the missing subpoenaed documents and his allegation that the ICL had some role in them being removed from the files. Collier J did not deal with the substance of the father’s allegations both as to the fact of documents being missing or his allegation that the ICL had removed them. Instead, he ordered that the father have leave to re-issue the subpoenas and that the documents, when produced, be held by the court for safe keeping.
His Honour also considered the father’s assertions relating to his child J’s broken leg, an injury which was sustained in May 2011. The father alleged that the child was the victim of a violent assault while in his mother’s care and the fractured leg resulted from it. Collier J made an order which permitted the father to seek an expert opinion as to the mechanism of the child’s fracture but ordered that the opinion be by reference to subpoenaed notes and records and not involve an interview with the child.
The father did not appeal these orders. Nor did the father seek the re-issue of the subpoenas in accordance with his Honour’s direction. It was the father’s contention that he sought an expert opinion about the fracture to J’s leg but the expert shortly afterwards declined to continue with the report and returned the fee.
The trial was listed to commence before Stevenson J on 25 March 2013.
On 13 March 2013 the father filed an application seeking to vacate the hearing dates before Stevenson J. Further, he sought orders in relation to the missing documents, to discharge the ICL from continuing to participate in the trial and orders for the provision of an expert report in relation to J’s broken leg. It seems that the father particularly wanted J to be interviewed by the doctor who was to prepare the report.
On 25 March 2013, on what would have been the first day of the hearing before Stevenson J, the father appeared for himself and the mother was represented by counsel. Counsel appeared for the ICL. At this time the father asserted to Stevenson J that the mother suffered from a mental illness. Her Honour gave the father leave to file an application for an order appointing an expert to assess the mother’s mental health. That application was never filed. Her Honour also granted the father’s application to vacate the hearing dates and it was then relisted for trial on 12 August 2013.
On 3 April 2013 Stevenson J made orders and gave her reasons for the decisions of 25 March 2013 (Fadel & Jarrah [2013] FamCA 312). In relation to the father’s claim that she refer the question of the missing documents to the Attorney General for investigation, leading to criminal prosecutions,
her Honour said that it is not the role or function of this court to investigate anything of that nature and told the father that the court decided cases based on the evidence that was before it. Her Honour referred to Collier J’s grant of leave to the father to re-issue the subpoenas and said she could do no more than his Honour had done on that point.
Stevenson J declined to allow the father to take J to be interviewed by a doctor and said that the evidence produced by the father to her on that issue fell short of establishing that the child had been assaulted while in the care of his mother.
Her Honour refused to order that the ICL be discharged and found that nothing put to her by the father would justify that course of action. Her Honour further explained to the father that, if he wished to pursue the issue of the mother’s mental health, it was up to him to bring an application identifying the expert to be appointed and indicating how the expert was to be paid.
On 21 May 2013 the father filed an application seeking that Stevenson J disqualify herself. After hearing the father on the issue, her Honour reserved her decision. On 19 June 2013 her Honour refused the application (Fadel & Jarrah (No. 2) [2013] FamCA 531).
The father lodged an appeal on 15 July 2013 against her refusal to disqualify herself. At the same time he filed an application effectively seeking an extension of time in which to appeal against Stevenson J’s orders of
25 March and 3 April 2013. Both the appeal and the application for leave to appeal were listed before the Full Court on 11 November 2013.
When the appeal came on for hearing, it was apparent that the father had failed to lodge his appeal books and summary of argument as ordered and therefore his appeal against the refusal of Stevenson J to disqualify herself from hearing the proceedings was deemed to have been abandoned by operation of r 22.21 of the Family Law Rules (2004). Further, the hearing of the parenting proceedings had been listed before a judge other than her Honour.
The father sought an adjournment of the appeal and an application for an extension of time to appeal because he had been refused legal aid and had lodged an appeal against that refusal which had not then been determined. Neither the mother nor the ICL opposed the adjournment on that basis.
Thus on 11 November 2013, the Full Court ordered that in the event that the father sought to reinstate the abandoned appeal, it not be listed until the principal parenting proceedings had been completed and similarly in relation to the father’s application for extension of time to appeal against the orders of Stevenson J made on 25 March and 3 April 2013 (Jarrah & Fadel [2013] FamCAFC 192).
The hearing of the parenting issues was then listed for hearing before
Johnston J. In the usual course of making directions for the hearing,
his Honour ordered the father to file affidavits of evidence.
No evidence was ever filed by the father in the proceedings before Johnston J.
Johnston J listed the matter for hearing commencing 17 February 2014. On 24 January 2014 the father filed an application that the hearing dates be vacated and he also sought further orders. The father’s application was opposed by the mother and the ICL. On 31 January 2014 Johnston J declined to vacate the hearing dates allocated (Jarrah & Fadel [2014] FamCA 47).
In his reasons for refusing the application, which are the subject of this appeal, his Honour noted that that the parenting proceedings were first listed for hearing on 10 July 2012 and hearing dates had been vacated four times before the present application that his Honour was considering.
It is relevant too to record some of the matters to which his Honour referred in refusing the application.
His Honour noted that the father’s application for adjournment was based on a number of things, including his objection to the ICL remaining in the matter and his allegations that she had removed documents. His Honour referred to the leave given by Collier J to allow the father to re-issue the subpoenas and to Stevenson J’s advice to the father that she could do nothing else than had Collier J. Further, his Honour observed that the father said that he did not re-issue the subpoenas because he did not have the money.
Johnston J said that the issue of the alleged missing documents had been “within Mr [Jarrah’s] control now for a very long time, going right back to February last year when he raised the matter with his Honour” (a reference to Collier J). The father also based his application for adjournment on his concerns as to how J’s leg was broken. His Honour said:
8. Mr [Jarrah] has indicated that he engaged a Dr [P], but he was not happy with Dr [P]. Then he engaged, a Dr [G]. The relevant material was provided to Dr [G], and Dr [G] produced a report. But at the end of the day, Dr [G] indicated that he was really unable to form a final opinion about what might have occurred. And in those circumstances, the father says today to the Court that he would like to get another doctor engaged for that purpose. In my view, in respect of that issue, the father has had more than adequate opportunity to have such an expert prepare such a report.
His Honour then considered the father’s further basis for an adjournment which was his assertion that the mother suffers from a mental illness. His Honour said that a single expert psychiatrist had been engaged to give evidence in the hearing and his report had been provided to both the father and mother. He said that that expert could be cross-examined by the parties on any asserted issues.
During the hearing of the application before his Honour, the father referred to the opportunities given to him by both Collier and Stevenson JJ to obtain his own expert report on the mother’s mental health and told Johnston J that he had not yet pursued those opportunities because he did not want to do so when there was no hearing date fixed.
His Honour refused to adjourn the hearing. He concluded:
14. …When one weighs up all the relevant matters, and particularly bears in mind the number of occasions that this matter has been adjourned on the application of the father, justice to the parties and to the children requires, in my view, exercising this Court’s discretion in favour of dismissing the adjournment application.
On 7 February 2014, the father sought leave to appeal against his Honour’s refusal to adjourn the hearing. That application was listed before the Full Court for hearing on 12 February 2014. The father did not appear at the hearing, sending a note to the Appeals Registry late in the evening of the
11 February 2014 asking that the hearing of the application be adjourned. In support of that application, the father attached a report from his clinical psychologist who has been treating the father for some time and a letter from the father’s solicitor indicating that on 10 February 2014, the father was engaged all day in matters in the Local Court and was “visibly distressed”.
The adjournment application was refused and the application was heard in the father’s absence and dismissed by the Full Court.
We pause here to note that in argument on the present appeal, the father asserted that the Full Court hearing of the application on 12 February 2014 was listed without notice to him and he disavowed ever writing to the court seeking an adjournment of the hearing. It is thus inexplicable that whoever did write to the court seeking the adjournment was in possession of two contemporaneous documents about the father’s activities and on which the application was based.
Thus the hearing before Johnston J commenced on 17 February 2014. However, shortly beforehand the Court Registry received a note from the father seeking an adjournment of the proceedings supported by a note from his treating psychologist of the same date as that relied on before the Full Court on
12 February 2014 supporting the request for adjournment. Further attached to the request was a letter from the father’s General Practitioner referring to a consultation with the father on 4 February 2014 and in which the doctor explained that on 4 February 2014 the father attended a hospital complaining of severe neck pain. As a result of this the General Practitioner said that the father was “unfit to attend court for a period of one month.” The hospital records were produced. His Honour noted that the father attended on 4 February 2014 and was discharged the same day, having been provided with analgesia.
His Honour also took into account the letter of the father’s solicitors provided to the Full Court on the hearing of 12 February 2014 which said that on
10 February 2014, the father had spent the entire day engaged in proceedings in the Local Court.
Nonetheless, his Honour adjourned the hearing for some hours to enable the mother and the ICL to consider the position. When the matter resumed
his Honour, in court, telephoned the home of the father and a male person answered the phone and, on being told it was the court calling, said he was not the father but a friend of the father. His Honour asked that the father be told that the proceedings would commence at 10 am on 18 February and if the father was not there, would proceed in his absence. Shortly afterwards, the mother gave evidence that she recognised the voice of the man who answered the phone as being that of the father.
His Honour then directed the mother to have a letter personally served on the father informing him that if he failed to appear on 18 February 2014 the mother would ask the Court to hear her application as an undefended proceeding.
On 18 February 2014 the matter recommenced. His Honour was satisfied that reasonable steps had been made to serve the letter which, ultimately, was left in the post box at the father’s home, notwithstanding there was evidence that someone was at the home at the time but not answering the door. The father did not appear and his Honour proceeded, as he had said he would.
Hearing before the trial judge
His Honour had before him evidence from the mother, documents produced on subpoena and which were tendered to him and a report of a single expert,
Dr K. His Honour also had the benefit of submissions on behalf of the mother and also on behalf of the children through the ICL. Because the mother alleged that the father behaved inappropriately with the children and alleged he had engaged in inappropriate sexual conduct with the boys, amounting to sexual abuse, the Court obtained a Magellan report from the Department of Family and Community services which set out the history of reports made to it and the outcome of the reports and the involvement of the Joint Investigation Response Team (“JIRT”).
The mother further alleged that the father had been physically violent to her and the children during the relationship and had otherwise made threats of violence to her and to her family in Egypt.
Obviously, as his Honour indicated, he had no evidence from the father nor was the mother challenged by the father in cross-examination.
Dr K, in preparation for his report, interviewed the parties and the children and conducted an interview with the father alone and in the presence of the children. His report contains a detailed recounting of the interview with the father and further comments on the father’s relationship with the children as observed by him. To the extent that he was able, given the information available to him, Dr K commented on the allegations of sexual impropriety of the father with the boys.
Additionally, Dr K spoke to other people involved in the family, such as the mother’s doctors and the principal of the children’s school.
Dr K recommended:
217. That the mother have sole parental responsibility.
218. That the children remain resident with the mother.
219. That the mother be able to relocate interstate should she so wish.
220. I am concerned that even if the father was given very clear boundaries by the court and informed of the consequences of crossing those boundaries, there is a significant risk that he would cross those boundaries in a misguided attempt to talk his wife or children around, or assert his rightful place. I note that in the context of this assessment, the father expressed a belief that he would only need five minutes of time with his wife, or with his children without my interruptions, to bring them to accept his point of view and to set things right.
221. Because of the above concern, I recommend that the children have no contact with the father, and that the father not be permitted to approach the mother or children in any way.
Dr K continued and recommended that there be some “very minimal line of communication”, for example by way of a letter to the father providing him with a “six-monthly” update on the children and for the father to be able to send a card or letter to the children, again on a six-monthly basis. The content of the father’s correspondence should be limited to responses to the updates about the children provided to him. Further, he considered that once a child reached fourteen, contact “in some form” might be introduced but only if desired by the child and at the discretion of the mother.
His Honour’s reasons
His Honour considered the allegations made by the mother in relation to the father.
As to the allegation that the father had been physically violent to her throughout the relationship, apart from the mother’s evidence, his Honour had evidence about the circumstances in which an Apprehended Violence Order was made against the father in protection of the mother and children.
The trial judge referred to evidence that the child E had told her school counsellor in 2012 that her father hit her and her brothers “with his fist or a broken garden hose”. His Honour referred to Dr K’s report in which E is recorded as saying that if her father was angry with the children he would hit them and also told him that her father hit her mother with a stick [39]. Similar things were said by J to Dr K [40].
His Honour noted that as part of his interviews, Dr K had spoken to a woman from a refuge at which the mother attended. His Honour recorded:
42. … She said that mother and children reported violence from the father against them, that they had all appeared to be frightened of him and relieved to be away from him. Dr [K] said that [the woman] had found their accounts to be consistent over time, linked with congruent emotion, and that there had been no factors which led [the woman] to doubt their story.
43. Dr [K] believed the description by the mother and the children of the father’s verbal and physical aggression and physical violence towards them, particularly the mother, to have been an accurate description. So do I.
Turning to the mother’s allegations of inappropriate behaviour and sexual abuse by the father towards the children, his Honour recorded the mother’s allegations from [44] and referred to the conclusions of Dr K at [49]. His Honour noted that Dr K’s opinion was that the conduct alleged probably had occurred but that the father’s intent was more in the domain of teaching the boys about manhood rather than as a result of a paedophilic urge. His Honour said:
49. … Dr [K] also said that it is disturbing and inappropriate behaviour showing lack of respect for the child and lack of understanding of the child’s developmental needs at a pre-pubescent age and even at puberty for their need for respectful guidance rather than physical obtrusion.
The trial judge continued and concluded that it was more probable than not that the father had acted towards the boys as the mother alleged.
The trial judge referred to the issue of J’s broken leg and noted that although the hospital records relevant to J’s admission to hospital at the time note that he jumped from play equipment and landed on his feet as being the cause, the father was suspicious that the mother or some other person had injured the child [54].
In circumstances in which the father produced no evidence to the contrary and where the same account for the break was given by the mother at a contemporaneous time to a refuge worker, his Honour said that he had “no concern that this matter reflected poorly on the mother.” His Honour noted that this finding accorded with the submission of the ICL [56] and [57].
His Honour appropriately considered the provisions of Part VII of the Family Law Act1975 (Cth) (“the Act”) and, in particular found:
·The children’s present disengagement from a relationship with the father was “mostly related to their own negative experience of that relationship, rather than any influence by their mother” [78];
·That while Dr K said that a longer term separation from the father could likely cause the children some grief at the loss of the family with which they had been accustomed “… the father’s deficits and poor father-child relationships in this case are consistent with his observation that the children appeared to feel more relief than grief at the separation from their father” [84];
·The father had perpetrated “ongoing, regular, serious acts of abuse and violence against the children and their mother. He has threatened to kill the mother and members of her family.” [96]; and
·The father has very serious deficits in being able to support the well-being and capacity of the mother and “…it is clear that he has used coercion, control, abuse, both verbal and physical, including perpetrating acts of physical violence on [the mother], as well as threats to kill her and members of her family, and he has undermined her relationship with the children.” [112].
His Honour concluded:
123. In my view, such an outcome for these children is reinforced by a weighing of the additional considerations. The children have themselves arrived at views which reflect the breakdown in their relationship with their father. The father’s appalling and destructive behaviour towards the children and their mother, his completely inappropriate attitude to parental responsibility and his serious relational deficits all point to the best interests of these children requiring orders which will support their ongoing strong functional relationship with their mother and which will protect them from the vulnerability and risk which would be involved if there was to be some requirement for contact or communication between them and their father.
Thus his Honour made the orders sought to be impugned by the father on appeal.
Applications in an Appeal
In Appeal EA 94 of 2013, the father filed an application seeking orders related to the decision of Stevenson J in April 2013. That application was not heard as the father abandoned his appeal against the substantive orders of her Honour and the application had been adjourned by the Full Court, not to be relisted until there was an appeal against substantive parenting orders. Thus the application was before the Full Court on the father’s appeal against
Johnston J’s orders. The father abandoned that application during the appeal hearing and it will be dismissed.
By an Application in an Appeal filed on 3 July 2015 in EA 37 of 2014, the appeal against the orders of Johnston J, the father sought leave to adduce further evidence on the appeal.
On its face, the application to adduce further evidence has no merit at all. The information sought to be adduced in the appeal hearing included:
· The medical reports produced by the father to his Honour in support of the application for adjournment of the hearing;
· A statement from a person asserting to be the person to whom the trial judge spoke when the father’s home was called on the first day of the hearing;
· Handwritten pages from a police notebook together with a statement by a police officer who attended the mother’s home in 2013 responding to a call from the mother and a statement by the mother about the same event in which she said that the father had been sitting outside her house in his car in breach of the AVO then in existence;
· The father’s statement contesting that assertion, apparently made for a hearing in a Local Court in April 2013, together with a letter supporting his account of his car being under repair at the time of the asserted event;
· Two letters from the father’s psychologist, who based on the father’s account given to her, provided an opinion about the mother’s psychological functioning;
· A page from MIMS (Monthly Index of Medical Specialties) of 2011 about the operation of the drug Keflex;
· Two pages written in Arabic script;
· A letter dated 22 April 2014 from the President of the B Cultural Organisation in which he sets out a conversation with the mother in circumstances in which the President and a Bishop of the Church visited her in an effort to: “accomplish family reunion” and in which the author sets out what seem to be the mother’s denials that she or the children were subjected to violence by the father and his opinion based on that and subsequent events which were apparently relayed to him by a third person;
· A letter dated 24 April 2013 from the Family Court responding to what was discerned to be the father’s application that Stevenson J recuse herself from hearing his matter;
· A certificate of appreciation to Mr X for being a volunteer at World Youth Day in 2008;
· A letter dated 17 November 2005 of appreciation to Mr X from SC School thanking the father for his assistance at the school at their open day;
· A letter dated 21 November 2005 noting that Mr X had assisted as a volunteer at a child care centre;
· A certificate of attendance by Mr X at a Child Protection workshop on 23 June 2005;
· A letter of 27 June 2006 noting that Mr X had worked as a volunteer at the Z Migrant Centre from July 2005; and
· Minutes of a meeting of Men’s Shed Working Group Meeting of 27 June 2006 at which Mr X is noted to have attended.
Assuming that Mr X is the father, it is immediately apparent that most of this information could have been adduced by the father in the hearing before Johnston J although in our view, most of the proposed evidence would not survive a challenge to relevance. Nothing in the proposed evidence would, if admitted, demonstrate that the judgment under appeal is erroneous and thus the application will be dismissed.
The Appeal
This matter does not raise any question of general principle and we will give reasons in short form in accordance with s 94(2A) of the Act.
On 14 April 2014 the father filed an amended notice of appeal against
his Honour’s orders. It does not assert grounds in any accepted sense but is a combination of asserted error and argument regarding the asserted errors. Many of the so called grounds are complaints about procedural and interlocutory orders made by Collier and Stevenson JJ years before, overtaken by similar procedural and interlocutory orders made by Johnston J.
In a quest for clarity we sought to identify with the father what actual errors were being asserted in the appeal. That resulted in the following grounds appearing to be at least the thrust of the father’s case on appeal:
·
His Honour erred in refusing to adjourn the hearing on
17 February 2014 and thus denied the father procedural fairness;
·His Honour erred in failing to allow the father the opportunity to file evidence as to: the injury to J’s leg, the mother’s mental illness and the contents of subpoenaed documents which had been “removed” from the court;
·The orders made by his Honour resulting in the children having no time with the father are so unreasonable as to speak of failure in the judicial process; and
·His Honour’s finding that it was the father who answered the telephone on 17 February 2014 was against the weight of the evidence.
It is apparent that the common matrix of all the asserted grounds is the father’s contention that he should have been permitted to file evidence about the matters of concern to him and, because his Honour refused to adjourn the matter, he erred in law.
The father chose not to file evidence and also chose not to attend the hearing in circumstances when he well knew the matter was fixed for hearing.
His Honour was entirely correct to proceed to determine the matter in the father’s absence.
The findings of fact made by his Honour were properly open to him on the evidence and those findings amply justified the conclusions to which
his Honour came and his finding as to what orders were in the best interests of the children.
His Honour made no errors of law.
In our view, there is no merit in the father’s appeal and it will be dismissed.
Costs
Both the mother and the ICL were in receipt of a grant of legal aid and each sought an order for costs to be paid by the father if the appeal was unsuccessful. The ICL application solely related to the cost of counsel briefed to appear on the appeal, quantified at $2,200.
The father opposed the making of any costs orders, arguing that he is a pensioner and has no money.
The question of costs on appeal is governed by consideration of the matters contained in s 117 of the Act. In this matter, of particular relevance is that fact that the appeal has been wholly unsuccessful.
We see no reason why a costs order against the father should not be made. Lack of funds, even indigence, is not a bar to the making of a costs order where it is otherwise appropriate, and in this case, it is entirely appropriate.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 18 August 2015.
Associate:
Date: 18 August 2015
0
6
2