FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jerrim & Palmar [2021] FedCFamC1A 93
Appeal from: Jerrim & Palmar [2021] FCCA 1561 Appeal number(s): NOA 38 of 2021 File number(s): BRC 11114 of 2018 Judgment of: TREE J Date of judgment: 20 December 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders providing for the children to live with the mother and spend supervised time with the father – Where the grounds of appeal are either incompetent or not particularised – Where the primary judge’s findings of fact are not challenged – No ground of appeal established – Appeal dismissed – No order as to costs.
FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence was either available at the time of trial or did not relate to the grounds of appeal – Application dismissed.
Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs: 89 Date of hearing: 14 December 2021 Place: Cairns The Appellant: Litigant in person Counsel for the Respondent: Ms Cullen Solicitor for the Respondent: KLM Solicitors Counsel for the Independent Children’s Lawyer: Mr Sayers Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland ORDERS
NOA 38 of 2021
BRC 11114 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JERRIM
Appellant
AND: MS PALMAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
20 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 23 November 2021 be dismissed.
2.The appeal be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons,…
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- Jerrim & Palmar [2021] FedCFamC1A 93
- Case
- [2021] FedCFamC1A 93
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CaseChat Overview and Summary
Jerrim and Palmar were the parents of five young children. Palmar filed for custody and parenting orders following their separation. The primary judge found that the father had perpetrated physical family violence on the mother and at least one of the children, and that the children had been exposed to family violence in the presence of the father. The father had also been convicted of two breaches of a domestic violence order in which the mother and the children were the aggrieved or protected parties. The father lacked insight and understanding as to his role as a parent and had at times neglected the children and placed them in danger. The father’s disabilities, together with his lack of desire to properly engage with the children, meant that their needs were not met when in his care. The father’s risk to the children ranged from them being scared, confused and anxious, up to a risk of their death. The father lacked significant insight and/or the motivation to ensure that the children were properly supervised at the former matrimonial home. There was a risk the father would continue to denigrate the mother in the presence or hearing of the children and that it was probable that the father would continue to commit further acts of family violence by at least that means. There was also a risk that the father would again inappropriately physically discipline the eldest child. The risks which the father posed to the children would be diminished by supervision. Likewise, the risks would be diminished by the frequency of the father spending time with the children being minimised. The father did not have the capacity to provide for the emotional and intellectual needs of the children. Absent supervision, the father posed an unacceptable risk of harm to the children. Regular ongoing supervised time at a contact centre was not in the children’s best interests. Nonetheless, it would be in the best interests of the children for them to spend supervised time with the father six times a year. Given the father’s history of family violence towards the mother, the presumption of equal shared parental responsibility did not apply. The parties did not have a cooperative co-parenting relationship and there was no effective communication between them. In those circumstances, equal shared parental responsibility was not in the best interests of the children.
The father appealed the primary judge’s decision, seeking to adduce further evidence. The court considered the principles relevant to the discretion to admit further evidence, including the need for finality of litigation, the availability of the evidence at the trial, and the effect that the evidence would have on the Full Court’s view of the evidence before the trial judge. The court also considered the High Court’s decision in CDJ v VAJ, which held that the discretion to admit further evidence needed to be exercised with much care in parenting cases. The father’s complaint that the family report writer gave an incorrect professional address in one of her reports was dismissed as it could not possibly comprise error by the primary judge. The court found that no ground of appeal was established and the appeal was dismissed. The mother sought an order for costs in her favour, but the court found that there was no evidence that the father had any capacity to pay a costs order in any sum. The father’s conduct of the appeal had been consistent with an ill-informed, self-represented litigant. The court made no order as to costs.
The father appealed the primary judge’s decision, seeking to adduce further evidence. The court considered the principles relevant to the discretion to admit further evidence, including the need for finality of litigation, the availability of the evidence at the trial, and the effect that the evidence would have on the Full Court’s view of the evidence before the trial judge. The court also considered the High Court’s decision in CDJ v VAJ, which held that the discretion to admit further evidence needed to be exercised with much care in parenting cases. The father’s complaint that the family report writer gave an incorrect professional address in one of her reports was dismissed as it could not possibly comprise error by the primary judge. The court found that no ground of appeal was established and the appeal was dismissed. The mother sought an order for costs in her favour, but the court found that there was no evidence that the father had any capacity to pay a costs order in any sum. The father’s conduct of the appeal had been consistent with an ill-informed, self-represented litigant. The court made no order as to costs.
Orders
Orders of the court
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Background
Background to the litigation
For reasons which follow, the Application in an Appeal and the appeal will both be dismissed.BACKGROUND The father and the mother are aged 61 and 38 years of age respectively. Their relationship commenced in 2010 and concluded in 2018. Within that time, five children were born to them (“the children”), who are presently 8, 7, 6 (twins) and 5 years of age. During the course of the relationship the parties lived in a rudimentary dwelling in what appears to be an isolated rural location. At separation the mother moved into emergency accommodation. At the time of trial the father remained living in the former matrimonial home, with the mother living in a nearby town.THE PRIMARY JUDGE’S REASONS After reviewing the relevant evidence, the primary judge made the following findings, none of which are directly challenged in this appeal:·the father had perpetrated physical family violence on the mother and at least one of the children (at [129]);·the children had been exposed to family violence in the presence of the father (at [129]);·the father exerted financial and social control over the mother and children (at [129]);·the father had been convicted of two breaches of a domestic violence order (“DVO”) in which the mother and the children were the aggrieved or protected parties (at [129]);·the father lacks insight and understanding as to his role as a parent (at [130]);·the impact of the father’s disabilities, together with his lack of desire to properly engage with the children, means that their needs are not met when in his care (at [130]);·the father has at times neglected the children and placed them in danger (at [131]);·the risk which the father poses to the children ranges from them being scared, confused and anxious, up to a risk of their death (at [137]);·the father lacks significant insight and/or the motivation to ensure that the children are properly supervised at the former matrimonial home (at [138]);·there is a risk the father will continue to denigrate the mother in the presence or hearing of the children and that it is probable that the father will continue to commit further acts of family violence by at least that means (at [138]);·there is a risk that the father will again inappropriately physically discipline the eldest child (at [138]);·the risks which the father poses to the children would be diminished by supervision (at [139]);·likewise the risks would be diminished by the frequency of the father spending time with the children being minimised (at [144]);·the father does not have the capacity to provide for the emotional and intellectual needs of the children (at [146]);·absent supervision, the father poses an unacceptable risk of harm to the children (at [152]);·regular ongoing supervised time at a contact centre is not in the children’s best interests (at [153]);·nonetheless it would be in the best interests of the children for them to spend supervised time with the father six times a year to provide them with “sufficient understanding and recognition as to who their father is…[which] will assist them in developing emotionally in the future” (at [154] and [155]);·given the father’s history of family violence towards the mother the presumption of equal shared parental responsibility did not apply (at [159] and [160]);·the parties do not have a cooperative co-parenting relationship and there is no effective communication between them (at [161]);·in those circumstances equal shared parental responsibility was not in the best interests of the children (at [162]).
Evidence
Evidence Before The Court
Worse, in his Application in an Appeal filed 23 November 2021, the father raises allegations which are neither encompassed within the extant grounds of appeal, or his Summary of Argument.THE APPLICATION TO ADDUCE FURTHER EVIDENCE Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives this Court an unfettered discretion to admit further evidence on appeal. However, case law (albeit relating to the predecessor of s 35) has developed some well-known considerations which a Court will analyse as part of deciding whether to receive further evidence. The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed: 114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.…116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section. Relevant to appeals concerning parenting orders, the High Court continued:117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
Decision
Reasons for decision
In his Summary of Argument the father appears to make a complaint that the family report writer gave an incorrect professional address in one of her reports. That could not possibly comprise error by the primary judge, and this complaint enjoys no merit.CONCLUSION No ground of appeal is established. It therefore follows that the appeal must be dismissed.COSTS In the event that the appeal was dismissed, the mother sought an order for costs in her favour in the sum of $4,021.90. No proper schedule of costs was filed in support of that claim, which was simply calculated by reference to the grant of legal aid which the mother has in respect of the appeal. I have no evidence as to either the mother’s or father’s financial circumstances, although the mother is in receipt of legal aid, and both parties are on Centrelink benefits. Certainly there is no evidence that the father has any capacity to pay a costs order in any sum. The father has wholly failed in his appeal and his Application in an Appeal. The father’s conduct of the appeal has been consistent with an ill-informed, self-represented litigant. None of those matters, whether individually or collectively, are sufficient to displace the ordinary rule under s 117 of the Family Law Act 1975 (Cth) that each party to the proceedings should bear his or her own costs. There will be no order as to costs.
Ratio Decidendi
Legal Principle Established
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