JOLAHA & HANAS
[2019] FamCAFC 223
•27 November 2019
FAMILY COURT OF AUSTRALIA
| JOLAHA & HANAS | [2019] FamCAFC 223 |
| FAMILY LAW – APPEAL – INTERIM PARENTING – Where the father challenges the primary judge’s exercise of discretion – Where the father challenges the weight given to competing considerations – Where the father’s contention that the primary judge did not take into account his evidence and case fails on the basis that they were considered – Where there was no denial of natural justice in circumstances where the father filed voluminous material out of time – Where the father is bound by the conduct of his case – Appeal dismissed – The father to pay the mother’s costs of the appeal in a fixed sum. FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the father sought to adduce further affidavit evidence – Where the evidence was available at the time of the hearing before the primary judge – Application dismissed |
| Family Law Act 1975 (Cth) s 93A |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 In the Marriage of Abdo (1989) FLC 92-013 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Jolaha |
| RESPONDENT: | Ms Hanas |
| FILE NUMBER: | SYC | 113 | of | 2019 |
| APPEAL NUMBER: | EA | 40 | of | 2019 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Watts & Tree JJ |
| HEARING DATE: | 16 August 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 April 2019 |
| LOWER COURT MNC: | [2019] FamCA 291 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Ryan QC |
| SOLICITOR FOR THE APPELLANT: | York Law |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | John R Quinn & Co |
Orders
The Application in an Appeal filed 17 May 2019 be dismissed.
The appeal be dismissed.
Within 28 days of the date of these orders, the appellant pay the respondent’s costs of the appeal in the sum of $17,184.45.
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 Jolaha & Hanas 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 40 of 2019
File Number: SYC 113 of 2019
| Mr Jolaha |
Appellant
And
| Ms Hanas |
Respondent
REASONS FOR JUDGMENT
Introduction
On 12 April 2019, the primary judge pronounced interim parenting orders, for reasons then delivered. Those orders provided for the parties’ only child, X, born in 2017 and hence presently two years of age (“the child”) to primarily live with Ms Hanas (“the mother”) but spend gradually increasing amounts of time with Mr Jolaha (“the father”). Initially, the child’s time with the father would only be during the day, although from Christmas Day 2019, overnight time would be afforded on three occasions, before moving to one overnight every fortnight from 29 July 2020 (when the child turns three). That regime would then continue until 29 January 2021 (when the child will be three and a half years of age) at which time it would further increase to two overnights per fortnight.
From those orders, the father now appeals. The appeal is resisted by the mother. The Independent Children's Lawyer did not participate in the appeal.
Background
The father is presently aged 44 and the mother 31. Although both were born in Country B, they migrated to Australia in 1986 and 2001 respectively. They met in Australia in 2009, married in July 2010, and separated on a final basis on 31 August 2018, when the child was a little over one year old. At the time of separation, the parties were living in the United States of America, having moved in April 2017 to enable the father to temporarily work there but were intending to return to Australia in February 2019. Consent interim parenting orders made in the United States afforded the child to spend time with the father, including some overnight time.
On 20 December 2018, the mother and child returned to live in Australia with the father’s consent. On 24 December 2018, the father also returned to Australia.
These proceedings were commenced by the mother on 10 January 2019 and came before the primary judge on 27 February 2019, which was when the parties’ respective applications for interim parenting orders were listed before her Honour for 11 April 2019. Her Honour heard the matter then and delivered her reasons on the following day.
The father’s application to adduce further evidence
The father seeks to read in the appeal a short affidavit filed by him on 17 May 2019. In essence, it details that, on the weekday times ordered by her Honour, the father, in fact, will be unable to spend anything other than a few minutes with the child. That is because the father does not arrive home from work until about 6.10 pm and would need to travel for half an hour[1] to return the child to the mother at the changeover point at the ordered time of 6.45 pm, and therefore, he would spend, at most, five minutes with the child, other than the travel time in the car. Additionally, the affidavit annexes a Child Inclusive Conference Memorandum dated 9 May 2019.
[1] Contrary to what the father deposed to in his affidavit filed 10 April 2019 at paragraph 121, which was that he only resided “a short distance from where [the mother] resides”.
The additional material is seemingly designed to remedy a gap in the father’s evidence at the interim hearing, a deficiency inferentially noted by senior counsel for the father[2] and later explicitly by senior counsel for the mother in the following terms:
…the questions your Honour raises about how can we accommodate the father are really good questions, with respect, and we’re not assisted by the fact that the father, despite his 47 pages and 200 pages of annexures, has not actually addressed my [the mother’s] proposal. There’s no evidence from [the father] as to what he can and can’t do, what practical difficulties there are. So we’re no better off than we were this time yesterday when we didn’t have any of his material, had no idea what his position was. We’re no better off now to deal with that … [3]
(Emphasis added)
[2] Transcript 11 April 2019, p.15.
[3] Transcript 11 April 2019, p.11 lines 40–47.
Plainly, the evidence about the father’s work hours was available at the time of the hearing, and no explanation is now advanced as to why it was not otherwise in the father’s extensive trial affidavit.[4]
[4]In the Marriage of Abdo (1989) FLC 92-013, CDJ v VAJ (1998) 197 CLR 172 at [114].
The High Court (McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 observed:
114.…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 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 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 evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
In any event, her Honour was well aware that the father had work commitments, and that he would still be working at 3.00 pm, as her reasons at [29] recognised, “[t]he father can then return from work as soon as he possibly can.”
It should also be noted, that according to the Child Inclusive Conference Memorandum, come 23 August 2019, the father’s probationary period in his present employment will have expired, and hence “he will be able to negotiate with his employer to allow some flexibility in his work hours, such that, he will be able to leave earlier each Tuesday and start work later on Wednesday to spend greater time with [the child].”[5]
[5] Child Inclusive Conference Memorandum dated 9 May 2019, page 6.
Weighing those matters in the balance tells against admitting the father’s affidavit into evidence on the appeal. The father’s Application in an Appeal filed 17 May 2019 is dismissed.
The appeal generally
The appeal extends to only five grounds. Three of those grounds attack the substantive exercise of her Honour’s discretion. The difficulties in such a challenge succeeding are well-known.[6]
[6] House v The King (1936) 55 CLR 499 at 504–505; Norbis v Norbis (1986) 161 CLR 513 at 539; CDJ v VAJ (1998) 197 CLR 172.
To the extent that the father, in reality, challenges the appropriate weight which the primary judge gave to competing considerations, it is also well established that the exercise of the discretion must be plainly wrong, not just one which the appellate court may not have reached.[7]
[7] Gronow & Gronow (1979) 144 CLR 513.
Ground 1
Ground 1 asserts:
1.That her Honour’s discretionary decision miscarried by reason of her failure to take into account relevant facts, namely:
1.1.That the [father] had already been exercising time with the child for overnight periods in the United State of America between 31 October 2018 and 18 December 2018 (“the US overnights”);
1.2.That the US overnights had occurred with the consent of the [mother];
1.3.That there was an absence of evidence suggesting in any form that the US overnights had been other than a positive experience for the child;
1.4.That it was the [father’s] unchallenged evidence that prior to the parties’ separation it had been the child's routine that the [father] cared for her in the hours leading to her bedtime, including putting her to bed and in the hours after she woke each morning;
and in doing so her Honour failed to engage with the evidence and the case advanced by the [father].[8]
[8] Amended Notice of Appeal filed 17 May 2019.
The mother contends that the primary judge did not overlook any of these four matters. Particularly, at [11] and [26] of the reasons, her Honour said:
11. On 31 October 2018, orders are made for overnight time and one afternoon a week, and this is consented to by the mother. The mother says she was under pressure, on her own and in America. She had a lawyer but no family support and was told that this is the way it would be, and the mother’s position on this is supported by the affidavit of [Ms T], who was the child’s guardian ad litem in the American proceeding.
…
26. I am not persuaded that because [the child] spent 10 successful overnight periods with her father in America when she was about 15 months of age that this then means in her now changed circumstances living in Australia that I should forthwith order what the father seeks, two nights a week, or two nights fortnight, and daytime and that this should be ongoing on a long-term basis until agreement or final order. This order would be ongoing for the foreseeable future.
(Emphasis added)
It can therefore be seen that the primary judge, in fact, specifically adverted to the first three matters which the father contends she did not take into account. Those aspects of this ground of appeal are therefore not established.
As to the final matter said to have not been taken into account (Ground 1.4), the mother points out that, in breach of the timetable ordered by Registrar Ryan on 11 February 2019, which required the father’s material to be filed by 20 March 2019, his affidavit was, in fact, not filed until 4.00 pm on the day before the hearing of 11 April 2019, and hence the opportunity (under the 27 February 2019 orders of the primary judge) for the mother to file responsive material by 29 March 2019, was redundant.
In any event, although not contemplated in the orders of Registrar Ryan, on 15 March 2019 the mother filed the affidavit which she ultimately relied upon before the primary judge, however the father did not raise any issue about that at the hearing. Further, leave for the father to rely upon the late filed material was not opposed by the mother. However in those circumstances, to assert in Ground 1.4 that the evidence of the father was “unchallenged” is a difficult submission to advance, since the opportunity for challenge had been thwarted by the father’s own breach of the timetable orders, and moreover, senior counsel for the mother, referring to the lateness of the father’s affidavit, and the lack of opportunity to respond, specifically noted “that there are obviously matters that are in dispute between the parties”.[9]
[9] Transcript 11 April 2019, p.8, lines 30–31.
Moreover, even if it had been the practice of the parties during the relationship that, for the first year of the child’s life, she was put to bed by the father, that does not mean it was necessarily significant, as at 11 April 2019, when on any view, her primary attachment then was with the mother, and the then 20 month old child had only spent 10 overnights with the father in the preceding eight (nearly nine) months, and none whatsoever for nearly four months.
This aspect of the ground of appeal, therefore, is not made out. Ground 1 fails in its entirety.
Ground 2
Ground 2 reads:
That her Honour erred in principle in failing to exercise her own discretion in determining the period after which regular overnight time should commence (assuming it should not do so presently) but deferring to the views expressed by the [mother] through her counsel and in doing so, deferred her own discretion to the self-serving views of the [mother], unsupported by evidence and failed to give adequate reasons if the order was as a consequence of her own discretion.[10]
[10] Amended Notice of Appeal filed 17 May 2019.
In the course of argument, the primary judge challenged senior counsel for the mother about her then contention that the child should not spend overnight time with the father. During that exchange, her Honour suggested that two and a half years of age might be an appropriate time for overnight time with the father to commence, in response to which, having obtained instructions from the mother, senior counsel for the mother advised the primary judge that three years of age might be a suitable time.
The primary judge dealt with this issue in the following passages of the reasons:
2.… When pressed by me on the child’s capacity to cope with overnight time in the future and be away from her mother, the mother posited perhaps at aged three…
…
27.In matters concerning young children – and [the child] is a young child – whose primary and secondary attachments are still forming, cautious and slow haste are required. She is 20 months of age. It is clear the mother was the primary carer of the child and the father the primary income earner and that the father is a loving caring and competent father. This matter is not about his capacity to parent his daughter but his daughter’s capacity to be separated one night or at best – on his best case, two nights a fortnight or for a week from her mother on a regular and ongoing basis.
…
38.… [The child’s] mother is clearly her primary carer and has been throughout her life. Given her young age and that the father was working in America, the mother was with her all day and has always been with her daughter.
…
40.If I push overnight time, as the father wants me to do, against the mother’s wishes, I may not only damage the child’s attachments to her mother but also her all-important attachment to her father, and I am very cautious about this. Ten overnight times in a confined timeframe at age 15 months is vastly different to an ongoing long-term arrangement for a young child such as this…
41.I have formed the view that at her young age, 20 months, her young age militates against a rushed approach for overnight time which I accept the father will enjoy and will cope with …
42.I will provide for some limited overnight time in the next twelve months for even though I have found an order for overnight time at her age is not an order in her best interests, to say there should be no overnight time for potentially two years is also not an order in her best interests, but I will hasten slowly. I will provide some limited overnight time between now and when she is aged three to gauge how she goes and to give her father and the father’s family experience of having her overnight.
Whilst it is true that three years of age was first introduced by senior counsel for the mother, it is not correct to say that the reasons demonstrate that her Honour “deferred her own discretion to the self-serving views of the mother” or that those views were unsupported by evidence.[11] Particularly, where there was evidence that:
·The child’s primary attachment was with the mother;
·The child had lived primarily with the mother all her life; and
·The child had only spent ten overnights with the father in the last eight (nearly nine) months, and none in the preceding four months.
[11] Amended Notice of Appeal filed 17 May 2019.
As to the challenge that the primary judge’s reasons were inadequate, it is well accepted that the adequacy of reasons will depend upon the circumstances of the case,[12] and it is not necessary for a trial judge “to mention every fact or argument relied on by the losing party relevant to an issue.”[13]
[12]Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Bennett and Bennett (1991) FLC 92-191.
[13]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
We are well satisfied that the following appears from the reasons:
·Her Honour was concerned about disrupting the primary attachment of the child with the mother;
·Her Honour was concerned to progress slowly in reintroducing overnight time with the father, in order to preserve the primary attachment with the mother, and also ensure that the relationship with the father was not imperilled, but rather was consolidated; and
·Her Honour rejected the mother’s initial argument that overnight time should not be afforded in the interim orders, but intended to be cautious in re-commencing it, and determined that age three was an appropriate time for that to regularly occur.
Thus, Ground 2 fails.
Ground 3
Ground 3 asserts:
That her Honour's discretionary decision miscarried in ordering that mid-week time between the [father] and the child conclude at 6:45 pm, in circumstances where the [father’s] employment obligations and the travel time from his place of employment to his parents' home would result in no meaningful time being available for the [father] to spend with the child and consequently her Honour failed to take into account relevant facts.[14]
[14] Amended Notice of Appeal filed 17 May 2019.
In this respect, it is important to note that her Honour’s orders provided for the child to spend 18 hours of time with the father each alternate weekend, split between two days, as well as 15 hours per fortnight of mid-week time.
Her Honour recognised the difficulties which the father’s work posed in relation to the mid-week time, in that the orders themselves contemplated that the paternal grandparents (with whom the father lives) would collect the child, as the father would be at work. At [29] of the reasons, her Honour said:
29.I accept the father cannot be at his home at 3 o’clock on a Tuesday and a Thursday to collect his child because of his work commitments, however, the grandparents can do that. The mother was more than agreeable to the paternal grandparents collecting [the child] on those two days a week. The father can then return from work as soon as he possibly can.
The father’s argument is that this mid-week time “cannot aid the relationship between the father and child in any meaningful way and her Honour failed to take into account the obvious limitations.”[15] It is plain however, that her Honour was mindful of the father’s work commitments, and further, was cognisant of the important relationship which the child has with the paternal grandparents. Particularly, at [28], her Honour said:
28.… Fortunately for [the child], both her parents live with their own parents, and the grandparents of [the child] live [in] close proximity to each other and they are, again, competent and loving grandparents.
[15] Father’s Summary of Argument, paragraph 15.
It is also important to note that the father was on notice that the orders which the mother sought were for the child to spend time with the father mid-week for two evenings a week between 3.00 pm and 6.00 pm. Although that was described by senior counsel for the father at the hearing as “just not practical,”[16] there was then, and still is, no explanation for why the father did not put on material such as he now seeks to rely upon under s 93A of the Family Law Act 1976 (Cth) (“the Act”). In any event, we note that the time for the return of the child is three quarters of an hour later under her Honour’s orders than those contemplated by the mother.
[16] Transcript 11 April 2019, p.5 line 30.
Further, we again note that at paragraph 121 of the father’s affidavit filed 10 April 2019, he deposed that “[m]y living arrangements are such that I live with my parents and they reside a short distance away from where [the mother] resides with her parents.”[17]
[17] Father’s affidavit filed 10 April 2019, paragraph 121.
That was the state of the father’s evidence before the primary judge, and she was entitled to act upon it.
This ground of appeal fails.
Ground 4
Ground 4 reads:
4.That her Honour’s discretionary decision miscarries as a consequence of procedural unfairness in that her Honour during the course of the listing before her on 27 February 2019, at which the hearing for 11 April 2019 was allocated, made representations to the parties:
4.1On 3 occasions that she would require social science evidence before determining the interim application; and
4.2That the hearing resulting in the orders on appeal would be confined to operate for a short period pending a further hearing to be conducted when the evidence referred to in 4.1 is obtained;
and her Honour provided no notice that she intended to depart from the course that she had stated to the parties and in doing so, by making orders operative beyond age 3, she occasioned a procedural unfairness upon the [father].[18]
[18] Amended Notice of Appeal filed 17 May 2019.
As the mother identifies, it is not correct to say that during the 27 February 2019 hearing, her Honour indicated that she would “require” social science evidence before conducting an interim hearing, but rather she thought that any orders made without such evidence would likely only be temporary in nature.
However, notwithstanding her Honour’s February intimation, the orders then contended for by both parties at the 11 April 2019 hearing did not seek to have them revisited upon any social science evidence being obtained. Particularly, the father did not structure his argument by reference to the contended limitations identified by her Honour on 27 February 2019, but to the contrary, in answer to her Honour’s observation that “I could make an order for overnight time to start slowly in the future” responded, “[b]ut we don’t have that capacity to come back in six months time.”[19]
[19] Transcript 11 April 2019, p.20 line 27–30.
It is true that the Child Inclusive Conference was scheduled for 9 May 2019 following the 11 April 2019 hearing, but no party sought to have the matter relisted after 9 May 2019, or more precisely, after the Child Inclusive Conference Memorandum was made available.
Therefore, the parties did not conduct the hearing before her Honour by reference to any asserted limitation imposed on 27 February 2019, but rather on the understanding that the interim orders would likely continue until trial.
This ground of appeal fails.
Ground 5
By Ground 5, the father asserts:
5.That her Honour’s discretionary decision miscarried as a consequence of her Honour’s conduct having imposed a denial of natural justice upon the [father] arising from:
5.1Her failure to read the whole of the [father’s] evidence;
5.2Her failure to give reasons for not reading the whole of the evidence the [father] sought to place before her; and
5.3Her failure to make clear which parts of the [father’s] evidence she had read and which she had not.[20]
[20] Amended Notice of Appeal filed 17 May 2019.
This ground of appeal borders on audacious. After failing to comply with the timetable for the filing and service of his material, and having filed voluminous material not merely out of time, but as late as 4.00 pm on the day before the hearing, the father now seeks to impugn her Honour’s decision on the basis that she failed to read the whole of his evidence, did not give reasons for doing so, and did not identify which parts of the material she had read or not.
The following are the relevant facts and events:
·It is plain from an examination of the father’s affidavit that it deals not only with parenting matters but also with financial matters;
·On any view, much of the minutely detailed material in the father’s affidavit was genuinely irrelevant to the interim parenting applications;
·The primary judge advised that she had not, at the time she had commenced sitting, received nor read the father’s affidavit;
·Her Honour then withdrew to read the father’s affidavit and resumed some 25 minutes later saying, “I’ve read as much of that as I thought I should”[21]; and
·Notwithstanding her Honour’s observation, then senior counsel for the father did not seek to have the matter stood down so that the entirety of the material could be read, nor did he seek to have her Honour identify what parts had not been read.
[21] Transcript 11 April 2019, p.10 line 11
The father is bound by the conduct of his case below. [22] It is sufficient in dealing with this ground of appeal to note that no objection to the course taken by her Honour below was raised by then senior counsel for the father.
[22]Metwally v University of Wollongong (1985) 60 ALR 68.
In any event, her Honour did not pronounce ex tempore reasons on 11 April 2019 but rather delivered her reasons on the following day. In those reasons, her Honour says that she had read the father’s affidavit and Financial Statement filed 10 April 2019, and there was no challenge taken to that statement in this appeal. It is quite conceivable that her Honour, faced with the exigencies of a duty matter on 11 April 2019, read such material as she could on the day of the hearing itself, in order to appraise herself of the gist of the father’s affidavit so as to be able to engage with the issues during the course of the interim hearing, but thereafter, considered the father’s affidavit in greater detail in chambers when drafting her reasons. Certainly, given the statement at [4] of the reasons, we are not prepared to conclude that her Honour failed to read relevant parts of the father’s affidavit.
This ground of appeal fails.
Outcome
It therefore follows that the appeal fails in its entirety.
Costs
Counsel for the father conceded that he could not resist an order for costs in the event that the appeal failed. According to the mother’s schedule of costs, her costs are in the sum of $17,184.45. We are satisfied that the mother’s claimed sum is reasonable. There will therefore be an order that the father pay the mother’s costs of the appeal in the sum of $17,184.45 within 28 days.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Tree JJ) delivered on 27 November 2019.
Associate:
Date: 27 November 2019
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