Kaba & Zemin
[2024] FedCFamC1A 114
•11 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kaba & Zemin [2024] FedCFamC1A 114
Appeal from: Zemin & Kaba (No 2) [2024] FedCFamC1F 377 Appeal number: NAA 139 of 2024 File number: PAC 571 of 2020 Judgment of: AUSTIN J Date of judgment: 11 July 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks multiple forms of interlocutory relief – Where the appellant seeks an order that the Court procure the trial transcript at its expense – Where the appellant failed to persuade he should be relieved of the burden falling upon him to procure the transcript at his own expense – Where the appellant seeks to vacate the date of hearing of the appeal – Where the appellant has adequate time to prepare for the appeal hearing – Where the appellant’s application to join third parties to the appeal is misguided – Where the appellant seeks to extend an order made at first instance under s 102NA of the Family Law Act 1975 (Cth) (“s 102NA order”) – Where there will be no cross-examination in the appeal and no s 102NA order is necessary – Where the appellant seeks to stay the financial orders made by the primary judge pending disposition of the appeal – Where the appellant has not yet made any stay application to the primary judge as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where orders for disclosure cannot be made in the appellate jurisdiction – Where orders suspending child support obligations cannot be made in the appellate jurisdiction – Application dismissed – Oral applications for costs by the respondent and the Independent Children’s Lawyer dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, s 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.12, 13.14, 13.19
Cases cited: Bligh & Trott [2023] FedCFamC1A 95
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
OP & TP & Anor (2002) 30 Fam LR 281; [2002] FamCA 1155
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Number of paragraphs: 40 Date of hearing: 11 July 2024 Place: Newcastle (via Microsoft Teams) The Appellant: Litigant in person Counsel for the Respondent: Mr Heazlewood Solicitor for the Respondent: Sui Juris Lawyers Solicitor for the Independent Children's Lawyer: Sarah Bevan Family Lawyers ORDERS
NAA 139 of 2024
PAC 571 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KABA
Appellant
AND: MS ZEMIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
11 JULY 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 July 2024 is dismissed.
2.The respondent’s oral application against the appellant for party/party costs of and incidental to the application is dismissed.
3.The Independent Children’s Lawyer’s oral application against the appellant for party/party costs of and incidental to the application is dismissed.
NOTATION
A.Neither the respondent nor the Independent Children’s Lawyer require the publication of any reasons for Orders 2 and 3 hereof.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kaba & Zemin has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 11 June 2024, the appellant appealed from orders made on 4 June 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 1), which orders were both substantive and procedural in nature.
The substantive orders were the final parenting and financial orders made to determine the causes in respect of the parties’ children and property under Pt VII and Pt VIII respectively of the Family Law Act 1975 (Cth) (“the Act”).
The solitary procedural order dismissed the appellant’s interlocutory application, filed several weeks beforehand, seeking to re-open the evidence before the final judgments were pronounced in the parenting and financial causes.
Without making any formal order giving effect to the decision, the primary judge also dismissed the appellant’s disqualification application, as was evident from the content of his supporting affidavit but not contained within his interlocutory application.
The appeal comprises 11 grounds, though some are not competent grounds, such as the primary judge’s failure to take into account evidence not adduced at the trial (Ground 3), the primary judge’s failure to independently investigate certain aspects of the evidence adduced by the parties (Ground 4), the apprehended bias of both the Independent Children’s Lawyer (“the ICL”) and the single expert witness (Ground 6), the primary judge’s failure to demand the provision of certain evidence from the respondent (Ground 8), and misconduct by the respondent’s lawyers (Ground 9).
Regardless of the shortcomings of some grounds of appeal, on 8 July 2024, the appellant filed an application in the appeal seeking multiple forms of interlocutory relief. Without reciting the proposed orders verbatim, the effect of them is as follows:
(a)his provision of transcript, at the Court’s expense, for the whole of the trial before the primary judge conducted in March 2024 (Orders 1 and 3);
(b)his provision of transcript, at the Court’s expense, for the single day in June 2024 on which his applications to re-open the evidence and disqualify the primary judge were dismissed by his Honour (Orders 1 and 3);
(c)his provision of transcript, at the Court’s expense, for seven other hearing days held before registrars and other judges in the period between April 2022 and November 2024 (Orders 2 and 3), though the last date must by a typographical error given it is still now only July 2024;
(d)the vacation of the current hearing date before the Full Court on 27 August 2024 and his provision of three months reprieve within which to read and consider the content of all of the above transcripts (Order 4);
(e)the joinder of extra parties to the appeal due to his allegations of their misconduct (Orders 5 and 6);
(f)the extension of the order formerly made against the appellant under s 102NA of the Act so that he may now engage legally-aided representation for the appeal (Order 7);
(g)a freezing order on the parties’ assets, which amounts to an application to stay the financial orders pending disposition of the appeal (Orders 8 and 9);
(h)the compulsion of the respondent’s production of certain documents to the appellant (Orders 10, 11 and 12); and
(i)the immediate suspension of the appellant’s child support liability (Order 13).
The appellant’s application was promptly listed for hearing on 11 July 2024.
In support of the application, the appellant relied upon his affidavit filed on 8 July 2024, which is voluminous, but largely unhelpful in respect of the application at hand.
Transcript of hearings before the primary judge
The following observations in Peake & Cousins(No 2) [2019] FamCAFC 95 are apposite:
17.Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]–[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]–[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson &Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 at [16]):
(a) Whether the case is financial or child-related;
(b)Whether the whole or only part of the transcript is integral to the appeal;
(c)Whether the appellant can defray any part of the transcript cost;
(d)The proportional cost of the transcript to the anticipated cost of the appeal;
(e)The prima facie merit of the appeal; and
(f)Whether the Full Court hearing the appeal should make the decision about transcript.
While this appeal lies from both parenting and financial judgments, as the following assessment of the grounds reveals, the appeal appears to lack the necessary merit to justify the Court bearing the costs of the transcript for the appellant.
As already noted, the appeal also lies from the procedural order dismissing the appellant’s application to re-open the evidence, to which the transcript of the hearing on 4 June 2024 could be relevant, but none of the grounds of appeal appear to attack that dismissal order. The grounds of appeal are all directed to the substantive judgments.
The appeal comprises 11 grounds.
Ground 6 is a complaint about the apprehended bias of both the ICL and the single expert. First and foremost, this ground contains no complaint of an appealable error by the primary judge, but is forlorn in any event because the appellant was legally represented throughout the trial and no application was made to discharge either the ICL or the single expert.
The ICL could not be regarded as being biased just because she formed a view the children’s best interests required the parenting cause to be determined contrary to the appellant’s interests and she advocated for parenting orders similar to those proposed by the respondent.
As for the single expert, any bias alleged against him had to be pursued in cross-examination. If it was not, then the allegation of bias cannot be raised as an after-thought. If it was an issue agitated in cross-examination, the primary judge did not find the allegation of bias established, which finding entails no necessary error. The primary judge said in the reasons for judgment that the single expert’s evidence was “not the subject of effective challenge” and his evidence was given “considerable weight” in the parenting cause (at [166]).
Ground 9 complains of misconduct by the respondent’s lawyers, which again is not a competent ground of appeal which lies from the judgment of the primary judge.
Ground 10 complains of apprehended bias of the primary judge, but only because his Honour did not find the respondent was “dishonest”, which by its very nature is a complaint about the primary judge’s considered judgment – not a complaint of any pre-judgment manifesting bias. Nor does the ground purport to challenge the validity of the primary judge’s decision on 4 June 2024 to dismiss the appellant’s disqualification application, in which event it may be imputed that this complaint of bias is entirely different from that prosecuted before the primary judge.
Ground 11 is an ancillary complaint, alleging the primary judge “failed to adequately consider” the respondent’s dishonesty. Of course, it cannot be an error for a judge to not be convinced of one party’s unreliability just because another party alleges it. Here, the primary judge was satisfied the appellant’s evidence was “inherently unreliable” and “inherently improbable” (at [128]–[129] and [196]–[197]) and, conversely, the respondent’s evidence was found to be “compelling” (at [196]), being preferred by his Honour when the parties’ evidence was contradictory (at [130]).
Grounds 2 and 4 complain of procedural unfairness, but only in two respects: first, because of the appellant’s perception of the primary judge having mistaken some aspect of the evidence; and secondly because the primary judge did not investigate the respondent’s alleged fabrications. In the first respect, any factual mistake discernible from the reasons for judgment cannot amount to the denial of procedural fairness at the hearing, so the complaint is misconceived. In the second respect, the primary judge heard and determined the causes on the evidence adduced by the parties. It was not for his Honour to enter the adversarial fray and interrogate the respondent beyond the cross-examination conducted by the appellant’s own lawyers (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]–[20]).
Ground 5 complains of inadequate reasons, but the appellant does not need the transcript to make good on that ground.
Ground 5 also complains of “unjustified assumptions” made by the primary judge, but the particulars of the ground suggest the alleged errors are evident from the filed evidence and so the oral evidence adduced in cross-examination is not pertinent to the ground.
Grounds 1, 3, and 8 all complain of the failure to consider evidence. However, Ground 1 (at least in part) relates to evidence which was excluded, Ground 3 relates to evidence which was not read, and Ground 8 relates to evidence which was apparently not given (which is why the appellant now seeks the respondent’s disclosure of the relevant documents by proposed Order 11 in this application). The primary judge made clear in the reasons for judgment what evidence-in-chief the parties relied upon (at [35]–[38]).
The additional complaint within Ground 1 of the primary judge’s failure to properly consider the affidavit filed by the parties’ adult child (at [36(3)]) should be either evident or not from the face of the reasons for judgment without the need for transcript.
Lastly, Ground 7 complains of the appellant’s “ineffective assistance” from counsel and solicitor, the particulars of which ground are that his lawyers “failed to apply for a retrial” and “acted against the [appellant’s] instructions”.
Evidently, the appellant is dissatisfied with the performance of his lawyers at trial, but any appellate challenge to a judgment which is based on the incompetence of legal representatives depends on the capacity of the appellant to satisfy, not merely allege, that he or she was thereby deprived of a fair trial and a miscarriage of justice resulted (TKWJ v The Queen (2002) 212 CLR 124; OP & TP & Anor (2002) 30 Fam LR 281; Bligh & Trott [2023] FedCFamC1A 95 at [12]). Such a high bar is rarely surmounted.
Albeit in the context of criminal rather than civil trials, the High Court said this in TKWJ:
16.It is undesirable to attempt to be categorical about what might make unfair an otherwise regularly conducted trial. But, in the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks. …
…
31.As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of “flagrant incompetence”, “egregious error” or the like.
…
79.The critical issue in an appeal like the present is not whether counsel erred in some way but whether a miscarriage of justice has occurred. However, “whether counsel has been negligent or otherwise remiss . . . remains relevant as an intermediate or subsidiary issue”. That is because the issue of miscarriage of justice in such cases ordinarily subsumes two issues. First, did counsel's conduct result in a material irregularity in the trial? Secondly, is there a significant possibility that the irregularity affected the outcome? Whether a material irregularity occurred must be considered in light of the wide discretion that counsel has to conduct the trial as he or she thinks best and the fact that ordinarily the client is bound by the decisions of counsel. Accordingly, “it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence”. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.
(Footnotes omitted)
While the transcript of the trial in March 2024 could possibly aid the appellant in discharging such a high onus in respect of Ground 7, at this point in time the ground remains a relatively bare proposition and no submission made by the appellant to elaborate it gave any confidence he could eventually sustain it, even with the benefit of transcript. The relevant parts of the appellant’s supporting affidavit ([102]–[118]) simply assert his impression that the lawyers were not adequately prepared, but conclude with an expression of thanks to the counsel who appeared for the appellant.
Aside from generically claiming “financial hardship”, the appellant adduced no evidence at all to verify his inability to afford the cost of transcript. His financial circumstances remain entirely unknown, save for those revealed by the reasons for judgment. The primary judge found the appellant is a student with modest income (at [261]) but, unlike the respondent, he was freely represented in the trial (at [267]–[268]). Assuming the property settlement orders are not disturbed, the appellant will receive 30 per cent of the parties’ property, which will amount to about $176,290 (at [225] and [277]–[278]).
The appellant failed to persuade that he should be relieved of the burden which ordinarily falls upon him to procure the transcript at his cost and file it as directed (r 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). As the appellant has now filed the draft appeal book index on time (r 13.14(2)(a)), the appeal registrar will hold a directions hearing tomorrow and set the date by which the transcript must be filed in readiness for the hearing scheduled on 27 August 2024.
Transcript of hearings before the registrar and other judges
This appeal lies only from orders made by the primary judge on 4 June 2024, to which only the transcript of the hearings in March 2024 and June 2024 could possibly be relevant.
The transcripts of other hearings conducted by registrars and other judges are irrelevant to the appeal.
Vacation of the appeal hearing
The appealed orders were made on 4 June 2024. The appeal hearing is listed on 27 August 2024, by which time the appellant will have had about 12 weeks to prepare. That is adequate time within which to be ready.
Joinder of extra parties
When he filed the appeal, the appellant understandably joined only the respondent and the ICL, as they are the only parties interested in the appealed orders.
The appellant’s desire to now join child-care staff and the appellant’s former lawyers as parties to the appeal is misguided. Their alleged professional misconduct is not such as to warrant their joinder to the proceeding as the appeal hearing is not the forum to entertain the appellant’s complaints about their performance. They were not even witnesses at the trial.
Section 102NA order
The appellant was bound by an order made under s 102NA of the Act, which was why he was represented at the trial by lawyers appointed by the State legal aid agency (at [39], [42] and [43]). Such an order precludes an unrepresented party from cross-examining another party. But no party will be cross-examined in this appeal, so there is no scope for another s 102NA order to be made binding the appellant, thereby enabling him to approach the State legal aid agency for the appointment of more lawyers to represent him in the appeal.
Stay of orders
No application has so far been made by the appellant to the primary judge to stay the orders from which the appeal is brought, which is where the Rules require any stay application to be prosecuted (r 13.12(3)).
Disclosure
In the exercise of appellate jurisdiction, neither the Full Court nor a single judge has power to order one party to disclose documents to another party in respect of proceedings already heard and determined within original jurisdiction.
Child support
No order was made by the primary judge about child support. No order can be made in the exercise of appellate jurisdiction to suspend the appellant’s child support obligations.
Disposition
The appellant’s interlocutory application is dismissed.
The oral applications made by the respondent and the ICL for their party/party costs of and incidental to the dismissed application were dismissed without them requiring the publication of reasons for that decision.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 12 July 2024
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