Jerrim & Palmar
[2021] FedCFamC1A 93
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
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
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, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jerrim & Palmar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
By Notice of Appeal filed 26 July 2021, Mr Jerrim (“the father”) appeals from final parenting orders made by a Federal Circuit Court judge on 9 July 2021. Ms Palmar (“the mother”) and the Independent Children's Lawyer (“ICL”) both oppose the appeal. Also, by Application in an Appeal filed 23 November 2021, the father seeks to adduce a number of additional documents into evidence in the appeal. Again the mother and the ICL both oppose that application.
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]).
Based upon those findings the primary judge made orders that the mother have sole parental responsibility for all five children, and that the children live with her. There were further orders that the children spend two hours of supervised time with the father at a contact centre in each alternate month, and communicate with him via telephone or video call at 9.00 am each Saturday, or such other time as they may express a wish to do so. The father’s appeal challenges all of those orders.
THE APPEAL GENERALLY
The Notice of Appeal extends to nine grounds, most of which are not in fact competent grounds of appeal. More, in his two page Summary of Argument, the self-represented father referred to only five purported grounds of appeal, however they do not particularly correlate with the actual grounds contained in his Notice of Appeal. Further, in that Summary of Argument, the father made complaints which are not encompassed within any of the extant nine grounds of appeal. Unfortunately, none of the grounds of appeal are properly particularised, whether in the Notice of Appeal itself or in the father’s Summary of Argument.
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.
In his affidavit filed 23 November 2021 in support of his application to adduce further evidence, the father identified 11 documents which he seeks to adduce into evidence on the appeal. However contrary to r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), on occasion the affidavit did not identify the reason why the evidence was not adduced at the hearing.
Document 1
This document comprises a letter from the father’s general medical practitioner dated 1 June 2018. Plainly therefore it predated the trial. It appears to relate to mobility and strength issues pertaining to the father as at the date of the report.
At [46] to [48] of the primary judge’s reasons, his Honour recited events in the months preceding the date of the letter, during which the father was said to be inadequately supervising the youngest child. However at [46] the primary judge noted that at the time of an event on 27 April 2018, the father had a broken leg and could not get up to help the relevant child. Likewise at [47] in relation to an event on 4 May 2018, the primary judge noted that the father once again said “he could not care for the children at that time”. Later at [48] the primary judge recorded that the father was “also in a lot of pain”.
The father claims in his affidavit that this document was not “introduced in court because miscommunication between father and his barrister due to screen installed and father could not understand what was spoken by barrister”. The screen appears to be a screen placed between the father and the mother so as to restrict her ability to see the father whilst she was under cross-examination. It is difficult to conceive how that presented an audible barrier between the father and his counsel. In any event the primary judge plainly adverted to the father’s mobility issues at the relevant time, so the document does not speak to any error.
Document 1 will not be admitted into evidence.
Document 2
This document is an appointment letter from K Contact centre to the father dated 1 January 2021. It identifies that he has been offered two initial appointments with the “Men Choosing Change Program”. The father says this is important because it shows that he enrolled in that program.
At [120] the primary judge noted that there was in evidence a record of 19 May 2020 confirming that “a case review panel considered the father unsuitable for the Men Choosing Change program due to him not considering he has any behaviours that warrant changing”. It seems that the panel may have later changed that decision.
However there is no explanation adduced by the father as to why this letter was not produced at the trial, and in any event, it is difficult to see how it relates to the findings of the primary judge recited earlier in these reasons, which as I noted, are not the subject of any direct challenge in this appeal.
Document 2 will not be admitted.
Document 3
This document is an affidavit of Ms Q dated 4 December 2019, which was prepared by one of the father’s former solicitors, and relates to the witness’ observations of the father and the children whilst she was supervising his time with them. There is also an undated note from Ms Q which details similar observations.
There is no explanation as to why this affidavit was not read by the father in his case, beyond the father’s claim that “[t]his was caused by negligence of some people involved and screen installed preventing communication between father and his barrister”. However, apart from this unparticularised assertion, there is no reason to conclude that its non-tender was the product of negligence, rather than a forensic decision not to call witnesses as to the supervision of the father’s time with the children.
Document 3 will not be admitted.
Document 4
This document comprises an affidavit of Mr F dated 6 November 2018. Mr F was another supervisor of the father’s time with the children, and again the affidavit was prepared by a former solicitor for the father. It is in the same category as the affidavit of Ms Q. It will not be admitted into evidence.
Document 5
This is another letter from the father’s general medical practitioner dated 28 April 2021. It certifies that the father “does not suffer from any mental illness at this point in time”.
The father said that “[t]his was not put before the judge due to negligence and [lack] of interest in involved persons”. However in fact this certificate was annexed to the father’s trial affidavit. It is therefore already in evidence.
Document 5 will be rejected.
Document 6
This document appears to be a screen shot of a text message of 1 February 2020 from the mother to the father which reads “[u]ntil ICL approves him as supervisor I don’t want you using him as [s]upervisor. Let him do affidavit first then I will have him be your supervisor”. It is said that this document apparently evidences a breach of the then parenting orders by the mother. In his affidavit the father says that he, in effect, gave this document to his solicitor and barrister who appeared before the primary judge “but they failed for reason short time and screen installed in court room”. Again this is consistent with a forensic decision being made by the solicitors and barrister at the time. No ground of appeal directly alleges that the father was denied a fair trial by virtue of the negligence of his legal representatives, and in any event, leaving aside it is not in an admissible form, without any context the document is largely meaningless.
Document 6 will not be admitted into evidence.
Document 7
This document is an affidavit of the father sworn or affirmed in support of a Contravention Application on 15 June 2021, which was the day before the hearing before the primary judge commenced. The father says “[t]he reason why this was never considered are unknown while [the] father asked this be presented before the court, it is important to adduce this as to know about mother true nature”.
Undoubtedly the reason why the contravention proceedings were not dealt with at the same time as the trial, or indeed before them, is because they were only commenced the day before the trial. In any event the material is controversial.
It will not be admitted into evidence.
Document 8
This is a letter from Westpac Bank to the mother dated 30 July 2015, evidencing her opening an account at that time. It appears the father likely says that this contradicts any suggestion that he was financially controlling of the mother. He says that “[t]his was not introduce[d] to the primary judge despite father asked his solicitor to do so”. Again it is entirely consistent with a forensic decision on the part of the father’s legal practitioners not to rely upon this document. No doubt that was because it spoke not at all to absence of financial control of the mother by the father. In any event, no challenge to the primary judge’s finding of financial control is made by any ground of appeal.
Document 8 will not be admitted into evidence.
Document 9
This document is an email from the mother’s solicitor dated 28 October 2021, which post-dates the trial. The father’s affidavit says “[t]his explains what happen to the mother when she was seriously ill in hospital while the 5 children fell in care of religious cult namely [Religion J] while father could not get information from the mother… This is failure of primary judge to make order to guarantee the children are safe when parent is seriously ill”.
This document does not relate to any of the grounds of appeal, much less speak to any error by the primary judge. It will not be admitted into evidence.
Document 10
This is a document apparently published by the Queensland Human Rights Commission, entitled “Right to a fair hearing.” Its relevance to the appeal is quite unclear.
Document 10 will be rejected.
Document 11
This is a letter dated 25 March 2021 from Legal Aid Queensland to the father, advising that his application for legal aid was unsuccessful, because he did not meet the merits test, as he did not enjoy “reasonable prospects of success” of resisting the mother’s domestic violence application. It appears as though the father contends that he was not able to properly defend the mother’s application, as he was not legally represented. However the mere refusal of legal aid does not mean that the ensuing DVO was not properly made or should be ignored, much less the father’s two subsequent breaches of the DVO.
This document does not speak to error by the primary judge and it will be rejected.
Outcome
No document sought to be tendered under cover of the father’s Application in an Appeal filed 23 November 2021 will be admitted into evidence. It follows that the application will be dismissed.
THE APPEAL
Relevant legal principles
The appeal challenges the orders made in the exercise of the primary judge’s discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from discretionary judgments. In House v The King (1936) 55 CLR 499 at 504–505, it was said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Grounds 3 and 4 respectively allege a denial of natural justice and judicial bias. I will deal with these grounds first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581 and 611).
Ground 3
This ground provides as follows:
3. THERE WAS DENIAL OF NATURAL JUSTICE
(As per the original)
No particulars are given to this ground, and it is difficult to see how any such challenge could be made given that the father was represented by solicitor and counsel during the trial, and no complaint of procedural unfairness was raised by them. At all times the father was on adequate notice as to the nature of the orders which the opposite parties were seeking.
No error is discernible by reference to this ground and it fails.
Ground 4
This ground provides as follows:
4. THE JUDGE WAS BIESED
(As per the original)
The relevant principles relating to judicial bias are well established. The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]). In order to satisfy that test, the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 said at [8]:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
Thus, the inquiry into an apprehension of bias requires two steps: (1) the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters and (2) there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
The gravamen of the father’s challenge under this ground appears to be that the primary judge allowed the mother to be shielded by a screen in court, seemingly because she was crying, or at least discomforted. However it bears repetition that the father was legally represented at trial, and no complaint of apprehended bias was raised by his solicitor or counsel at the time. That in itself is sufficient to deal with this ground (Vakauta v Kelly (1989) 167 CLR 568). However in any event, the placing of a screen between the father and mother could not possibly suggest to a fair minded observer that the primary judge had in some way pre-judged or pre-determined any issue, whether as to the credibility of the parties or otherwise, as the primary judge himself made clear (Transcript 16 June 2021, p.14 lines 25–28).
In oral submissions the father further alleged that the primary judge preferred the mother’s barrister over his, however no instance of that was demonstrated by the father.
This ground fails.
Ground 1
This ground provides:
1.THE JUDGE FAILED TO CONSIDER EVIDENCE
(As per the original)
This ground was not addressed in the father’s Summary of Argument, nor was the relevant evidence particularised in the Notice of Appeal. Further, as I have already noted, the father makes no challenge to the primary findings of fact which underpin the reasoning which led to the primary judge’s orders. Particularly, there is no challenge to the findings which are the basis of the orders for parental responsibility, nor the factual findings which underpin the conclusions as to why the father’s time with the children should be restricted and supervised.
At the hearing of the appeal, the father said that the primary judge failed to understand that he could not walk at the time of the events of 27 April and 4 May 2018. That claim is patently wrong, as I have explained when rejecting Document 1.
This ground is without merit and fails.
Ground 2
This ground provides as follows:
2. THE JUDGE MADE DICISION THAT WAS WRONG
(As per the original)
As I have said earlier, no direct challenge is made by the father’s appeal to any of the factual findings or conclusions by the primary judge which support the orders ultimately pronounced. Insofar as this ground (perhaps) challenges the weight given to relevant considerations, that is quintessentially a matter for the primary judge (Gronow v Gronow (1979) 144 CLR 513). The primary judge clearly recognised that the children would benefit from having some connection with the father, but not more regularly than was ordered (at [153]). The risks which the father posed to the children precluded more regular or unsupervised time.
In the course of oral argument however, the father contended that the primary judge ought to have continued lay supervision of his time with the children, as had occurred in the past.
Up until literally the last few minutes of the trial, the father’s case was that he should spend unsupervised alternate weekend and school holiday time with the children. However at the very end of his submissions, the father’s counsel moved away from that, and said that what the father was now seeking was “effectively as much time as possible, unsupervised, but not overnight” (Transcript 17 June 2021, p.132 lines 35–36).
Therefore whilst strictly speaking the primary judge’s recital at [11] that “the father seeks the orders as outlined in his case outline filed 7 June 2021” was inaccurate, nonetheless no proposal of lay supervision was ever advanced by the father. More, any error by the primary judge as to the father’s proposal was ultimately immaterial, given that any unsupervised time was rejected by the primary judge (at [139]).
This ground is without merit and fails.
Ground 5
This ground provides as follows:
5. ERROR OF LAW
(As per the original)
It is not at all clear what the primary judge’s asserted legal error comprises. Perhaps it relates to the primary judge’s acceptance of the existence of a DVO between the parties, however no challenge was made to it at trial. Particularly the submissions which the father now wishes to make about the DVO under cover of this ground, were never advanced before the primary judge. Parties are bound by the way in which they conduct their trial (Metwally v University of Wollongong (1985) 60 ALR 68). Moreover there is no suggestion that the father did not have an adequate opportunity to respond to the mother’s application for a DVO, given that it was applied for on 28 May 2018, but not made until 6 March 2019.
To the extent that the father’s complaint is that relevant material was only given to him immediately prior to the hearing of the mother’s DVO application, such material was the mother’s written submissions, not the evidence upon which she relied (ICL’s Tender Bundle, p.206 at [48], being the decision of the District Court in the father’s appeal from the DVO).
This ground is without merit and fails.
Ground 6
This ground provides:
6. ERROR OF FACTS
(As per the original)
No particulars of the contended errors are contained in the Notice of Appeal, nor in the father’s Summary of Argument. Orally, the father repeated his contention that he was suffering a broken leg in early 2018, however I have previously explained that the primary judge was clearly conscious of that. Also the father orally asserted that the primary judge mistakenly concluded that the 4 May 2018 event (where the youngest child – not yet two – was found outside in a bath) involved there being water in the bath (at [47]).
However the witness who gave that evidence was not challenged about that matter. Further, even if there was no water in the bath, that does not detract from the lack of supervision of the child. Any error therefore is not material (De Winter and De Winter (1979) FLC 90-605).
The ground is without merit and fails.
Ground 7
This ground provides:
7. MEDICAL CERIFICATE WAS IGNORED
(As per the original)
Again, the medical certificate is not identified in the ground, and no submissions in support of this ground were advanced in the father’s Summary of Argument.
Orally the father contended that firstly the primary judge ignored his broken leg in 2018, and secondly ignored the certificate of 28 April 2021, which said that he “does not suffer any mental illness at this point in time”. I have adequately addressed the first matter earlier in these reasons.
As to the second matter, not only did the primary judge not make any finding that the father had any mental illness at the time of trial, but the family report writer, when shown the certificate in question, said that it allayed her concerns that cognitive factors were at play (Transcript 17 June 2021, p.104 lines 27–29).
This ground fails.
Ground 8
This ground provides:
8.FUTURE OF 5 CHILDREN WAS DECIDED ON SUBMISION OF INCOMPLETE OR TWISTED TRUTH
(As per the original)
This is not a proper ground of appeal, but rather is more in the nature of a submission. No elaboration of what was intended by the ground was contained in the father’s Summary of Argument; orally it comprised mere criticism of the mother’s trial counsel.
This ground is without merit and fails.
Ground 9
This ground provides:
9. I WAS NEVER ALLOWED TO STATE THE TRUTH
(As per the original)
Although not particularised in the Notice of Appeal, nor addressed in the father’s Summary of Argument, orally the father contended that his counsel and solicitor at trial did not follow his instructions, and that he should have spoken directly to the judge himself.
However counsel are not the mere mouthpiece of their client, and in any event the father’s trial affidavit comprehensively set out his evidence. How he therefore was prevented from telling his version of events is completely unclear.
This ground is without merit and fails.
Additional complaint
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.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 20 December 2021
0
8
0