Kaba & Zemin (No 2)

Case [2024] FedCFamC1A 169

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Kaba & Zemin (No 2) [2024] FedCFamC1A 169

Appeal from:

Zemin & Kaba (No 2) [2024] FedCFamC1F 377

Zemin & Kaba (No 3) [2024] FedCFamC1F 408
Appeal number: NAA 139 of 2024
File number: PAC 571 of 2020
Judgment of: MCCLELLAND DCJ, TREE & ALTOBELLI JJ
Date of judgment: 25 September 2024
Catchwords: FAMILY LAW – APPEAL – Leave to appeal – Where leave to appeal from procedural orders is refused – Where the appellant appeals the substantive orders of the primary judge, being final parenting and financial orders – Where the appellant’s grounds of appeal lack merit, are incompetent and not supported by the evidence – Appeal dismissed – Where the appellant was wholly unsuccessful – Costs ordered in a fixed sum.    
Legislation:

Family Law Act 1975 (Cth), Pt VII, Div 12A, ss 69ZT, 69ZX, 75(2), 102NA, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13(4), 12.17(1)(a), 13.23(2)(a)
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801

Concrete Pty Ltd v Parramatta Design & Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v the King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Kaba & Zemin [2024] FedCFamC1A 114

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Maddax & Danner [2016] FamCAFC 176

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Munday v Bowman (1997) FLC 92-784

Neil v Nott (1994) 121 ALR 148; [1994] HCA 23

Newett & Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11

Phillips & Hansford (2020) FLC 93-941; [2020] FamCAFC 28

R v Maitland [1963] SASR 332

Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97

Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681

Zemin & Kaba (No 2) [2024] FedCFamC1F 377

Zemin & Kaba (No 3) [2024] FedCFamC1F 408
Number of paragraphs: 91
Date of hearing: 27 August 2024
Place: Sydney
Solicitor for the Appellant: Litigant in person
Counsel for the Respondent: Mr Givney
Solicitor for the Respondent: Sui…

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AGLC
Kaba & Zemin (No 2) [2024] FedCFamC1A 169
Case
[2024] FedCFamC1A 169
Decision Date

CaseChat Overview and Summary

Mr Kaba appeals against the final parenting and financial orders made by the primary judge in the Federal Circuit and Family Court of Australia. The primary judge had found the appellant guilty of family violence, and the appeal concerns the primary judge's findings in this regard. The appeal also concerns the final financial orders made by the primary judge. The appellant was unsuccessful in his application for leave to appeal the procedural orders made by the primary judge. The appeal against the substantive orders of the primary judge was dismissed by the appellate court. The appellant was ordered to pay the costs of the respondent and the Independent Children's Lawyer. In the Federal Circuit and Family Court of Australia, Mr Kaba (the appellant) appeals against the final parenting and financial orders made by the primary judge. The appeal concerns the primary judge's findings of family violence, as well as the final financial orders made by the primary judge. The appellant had previously been unsuccessful in his application for leave to appeal the procedural orders made by the primary judge. The appellant's grounds of appeal lacked merit, were incompetent, and not supported by the evidence. The appeal against the substantive orders of the primary judge was dismissed by the appellate court. The appellant was ordered to pay the costs of the respondent and the Independent Children's Lawyer. The primary judge found that the appellant had committed serious offences of domestic violence, which were exacerbated by the breach of an AVO. The primary judge found that the appellant had perpetrated family violence against the respondent, often in the presence of the children. The primary judge found the respondent's evidence credible and not subject to significant challenge, and found the appellant's evidence unreliable and unsatisfactory. The primary judge accepted the findings of the Family Assessment Report in relation to the impact of family violence on each of the parties and the children. The primary judge found that the appellant was not a viable and safe parent due to the family violence he had perpetrated, and that the children were at great risk. The primary judge found that the orders proposed by the appellant would place the children in a position of unacceptable risk of psychological or emotional harm. The appellate court found that the appellant's grounds of appeal lacked merit, were incompetent, and not supported by the evidence. The appellate court found that the primary judge's findings of family violence were supported by the evidence, and that the primary judge had properly considered the safety of the children in making the final parenting orders. The appellate court found that the primary judge had properly considered the financial contributions of each party, and had made appropriate findings in relation to the apportionment of contribution. The appellate court found that the primary judge's reasons for the final financial orders were adequate, and that there was no error in the final financial orders made by the primary judge. The appellate court dismissed the appeal against the substantive orders of the primary judge, and ordered the appellant to pay the costs of the respondent and the Independent Children's Lawyer. The appellant was ordered to pay the respondent's costs in the sum of $15,000, and the costs of the Independent Children's Lawyer in the sum of $5,000, within 28 days of the date of the orders. The form of the order is subject to the entry in the Court's records. This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order.

Orders

Orders of the court

NAA 139 of 2024

PAC 571 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR KABA

Appellant

AND:

MS ZEMIN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ, TREE & ALTOBELLI JJ

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 27 August 2024 is dismissed.

2. The Amended Notice of Appeal filed 2 August 2024 is dismissed.

3. Within 28 days of the date of these orders, the appellant pay the respondent’s costs in the sum of $15,000.

4. Within 28 days of the date of these orders, the appellant pay the costs of the Independent Children’s Lawyer in the sum of $5,000.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the appellant’s application for leave to appeal the procedural orders is dismissed, the substantive appeal is dismissed, and the appellant is ordered to pay costs as assessed by the Court, of both the respondent and the Independent Children’s Lawyer (“the ICL”).BACKGROUND The trial of this matter was heard on 4 March 2024 and concluded on 8 March 2024. In the Court below, the appellant father was the respondent, and the respondent mother was the applicant. Both parties were represented by solicitors and counsel, and the ICL briefed counsel. The primary judge delivered two sets of reasons on 4 June 2024 (Zemin & Kaba (No 2) [2024] FedCFamC1F 377 (“the procedural reasons”); and Zemin & Kaba (No 3) [2024] FedCFamC1F 408 (“the substantive reasons”)). It is useful to identify and summarise some of the key findings made by the primary judge. In doing so, however, given the significant history of family violence in this case, we are mindful of the risk of re-traumatisation for the respondent and, indeed, for others who might read this judgment. The primary judge made detailed findings about the family violence perpetrated by the appellant on the respondent, often in the presence of the children. Necessary detail is given in the substantive reasons. With a view to minimising the risk of re-traumatisation, our summary of the evidence and findings about the violence experienced by the respondent and the children will remain at a high level. Some of the key findings of the primary judge in the substantive reasons include: ·There were two significant incidents of family violence perpetrated by the appellant in 2019 and 2020 which ultimately led to his imprisonment (at [4]);·The appellant remained steadfast in his denial of the criminal offences, notwithstanding his plea of guilty to some of the charges and his term of imprisonment (at [5]);·The respondent deposed to a significant history of physical assaults between 2006 and 2014 (at [12]) which, we observe, are in addition to the incidences of family violence in 2019 and 2020 (at [13]);·In relation to the 2019 and 2020 physical acts of family violence, in early 2021 the respondent appeared in the Local Court and pled guilty to certain charges and was found guilty of others. In 2022, he was sentenced to over two years imprisonment, with a portion of the sentence subject to a non-parole period. A final ADVO was made in 2022 expiring in 2027 (at [21]);·The appellant appealed only the sentence in April 2023 and was given a Community Correction Order and Intensive Correction Order. He was also ordered to complete several online courses and to perform community service (at [22]);·At the hearing, neither party sought that the Court dispense with the provisions of s 69ZT of the Act, notwithstanding that the appellant had entered a plea of guilty to certain criminal charges and that the allegations of family violence were serious (at [48]);·Ultimately, the appellant was found to have committed serious offences of domestic violence exacerbated by the breach of an AVO which, according to the agreed facts statement, included extensive abuse throughout nearly 100 text messages and nearly 50 phone calls with a threat to find the respondent “and beat the shit out of [her]” (at [54]);·Included in the charges for which the appellant was found guilty on his plea was one specific charge, for which he was indicatively sentenced to a term of imprisonment (at [56]);·Notwithstanding the above, the appellant’s position was that he considered that he had received poor and unprofessional legal advice in the Local Court and that he was persuaded to plead guilty to all charges contrary to the evidence, which he considered was insufficient to sustain a finding of guilt (at [60]);·In the hearing before the primary judge, it was the appellant who sought to rely on the transcript of proceedings arising from the Local Court hearing, not to support the correctness of the guilty pleas and findings of guilt, but rather to support the contrary contention, namely that the reasoning of the magistrate was flawed and that the appellant was induced to enter pleas of guilty to the lesser criminal charges against his better judgement (at [66]);·There were many aspects of the evidence of the respondent pertaining to family violence that were not challenged (at [73], [75]–[76], [91] and [98]);·The respondent’s evidence was found to be credible, and not the subject of significant or successful challenge (at [80], [99], and [102]);·The appellant’s evidence was unreliable and unsatisfactory (at [119], [121] and [128]); ·The primary judge was readily satisfied on the balance of probabilities that the various allegations of family violence, and in particular, those matters to which the appellant was found guilty either by his own plea or by the determination of magistrate, are easily satisfied (at [129]);·Where the evidence of the appellant and respondent contradicted, subject to other evidence that provided adequate corroboration, the evidence of the respondent was preferred (at [130]);·The primary judge accepted the findings of the report writer at paragraph 214 of the Family Assessment Report (“the report”) in relation to the impact of family violence on each of the parties and the children (at [156]): 214.If [the respondent]’s allegations are accurate, then, from an emotional and psychological perspective, [the appellant] has difficulty understanding or accepting, or has no regard at all, to the feelings and needs of others, he lacks empathy for others and relates to others with an authoritarian and dominating/domineering attitude and style, he prioritises his own needs over others, and he eschews and obfuscates from taking responsibility for his actions, such as the statements made by him about being upset, jetlagged and tired when he threatened to physically harm [the respondent]. He also appears to hold and display entitled and chauvinistic beliefs and attitudes. There is a significant concern and risk to the children that [the appellant] will undermine [the respondent]’s parenting and that his attitudes, impulse control and interpersonal difficulties and emotional dysregulation, will negatively impact the children and lead to poor role modelling. Parents are their children’s most important and influential role models and there is a risk that [Mr F] could adopt [the appellant]’s negative views about [the respondent] (and possibly women more generally) and [the children] could learn that it is acceptable to be treated with abuse and disdain in intimate relationships. ·The primary judge also accepted the summary of presentation of each of the parties given by the report writer (at 162]). For present purposes the focus is on the appellant: 258.Whilst [the appellant] asserts that he wants the children in his care equally so that he can develop better relationships with them and have more of an influence over their lives, he presents as believing it his inalienable right to have the children live with him in such an arrangement. It is also probable that he is highly motivated by a sense of injustice about [the respondent] having [the children] in her care for the majority of time and wanting to exact some sort of retribution on [the respondent] for leaving the relationship, making family violence allegations against him and for, what he perceives to be, shifting power from him to herself. LEAVE TO APPEAL

Evidence

Evidence Before The Court

The lack of particulars makes it impossible for us to discern the meaning of this Ground. No obvious error is apparent in the substantive reasons, or the orders made, in relation to financial matters.Ground 5.2 – no valuation was conducted for jewellery worth $85,000, and the respondent offered no evidence during the final hearing. At [222] of the substantive reasons, the primary judge records that the parties are agreed as to the assets and liabilities, save as to addbacks. This means that, save as to addbacks, the schedule of assets and liabilities at [225] was an agreed document. Jewellery is valued at $5,000. The Court notes that the appellant contended the value of the jewellery to be $85,000, but provided no evidence in support of this assertion, and counsel for the respondent conceded that the jewellery could be valued at $5,500 as an “admission against interest” (Transcript 8 March 2024, p.497 lines 7–8). Nothing turns on the difference in dollar value between the concession of $5,500 and the value attributed to the jewellery in the substantive reasons of $5,000. The appellant is bound by the way he conducted the case before the primary judge (Metwally at 71).Ground 5.3 – the primary judge ignored the father’s consistent highlighting of financial issues. The absence of particulars makes it impossible for us to understand this Ground of Appeal. We see no obvious error in either the reasoning or the orders made in relation to financial issues.Ground 5.4 – the primary judge did not investigate past and present child support payments. Limited or no information was provided by the mother on child support. Once again, it was no part of the role of the primary judge to investigate past and present child support payments.Ground 5.5 – the 70/30 division favouring the applicant seems extreme without detailed justification of contributions and future needs. Doing the best we can, we interpret this appeal ground is one based on inadequate reasons for the orders made by the primary judge. The reasons explaining the financial orders commence at [212] of the substantive reasons, and the schedule of assets and liabilities is set out at [225]. His Honour deals with addbacks from [229]–[242]. Commencing at [243], his Honour explains why he apportioned contribution as to 55 per cent to the respondent and 45 per cent to the appellant. His Honour clearly articulated that this created a 10 per cent differential amounting to $117,526 (at [257]). The apportionment of contribution is attributable to the following factors. His Honour found that the appellant had intentionally diverted income from the accounts into which rental was collected on the parties’ investment properties into his own account (at [238]). Whilst it was not clear what became of that money, his Honour found that it was likely the appellant used the funds for his own personal expenses (at [239]–[240]). At [242], his Honour made clear that he proposed to treat the rental income received by the appellant as relevant to assessment of contribution. Moreover, his Honour considered the fact that the appellant continued to live in the family home but did not pay the mortgage, at the same time as the respondent and the two younger children were required to find other accommodation (at [250]). His Honour also found at [254] that the respondent had the overwhelming financial burden in respect of the children, without contribution or assistance from the appellant.

Decision

Reasons for decision

In substance, this repeats appeal Ground 1.4, and we repeat our findings in that regard.Ground 4.3 – the judgment does not adequately address how cutting off contact between the appellant and younger children serves their best interests. Insofar as this is a complaint about the adequacy of reasons, it has no merit. Amongst many other paragraphs, [204]–[208] provide a clear explanation for why it is not in the best interests of the younger children to communicate and/or spend time with the appellant.Ground 4.4 – no consideration of supervised visitation or other means to maintain father-child relationships. The appellant did propose supervised time for a short period as part of his substantive proposal to the Court. The children had previously spent supervised time with the appellant. The report recorded these facts but did not recommend supervised time. At paragraph 248 of the report, the report writer specifically adverted to the risk of the appellant’s “manipulation and undermining of their relationships with [the respondent]”, the reference being to the children. At paragraph 249, the report writer referred to supervised time with the appellant “for the purposes of keeping their identity formation”, thus alluding to recognition contact. The primary judge was therefore aware of these options. While his Honour was primarily focused on the safety of the children (see, eg, at [178]) he also considered their views (see, eg, at [181] and [192]). The findings of family violence are clear and have been identified above. The primary judge found that the appellant was not “a viable and safe parent” because of the family violence he perpetrated, and that the children “are at great risk” (at [208]). His Honour had clear evidence about the respondent’s “emotional and psychological perspective” (at [156] and [162]), and was very conscious of the need to protect the children from psychological and emotional harm (at [161]–[162]). His Honour found that the orders proposed by the appellant (which included a period of supervised time) would place the children in a position of unacceptable risk of psychological or emotional harm (at [204]). We are satisfied that these findings expose the reasons for not making an order as contended by the appellant (Bennett and Bennett (1991) FLC 92-191 at 78,266).Ground 10 – apprehended bias Ground 10.1 – despite acknowledging the respondent’s dishonesty, the primary judge’s bias was evident as it did not affect his judgment. We infer the appellant’s contention is that despite the primary judge acknowledging the respondent’s dishonesty, he did not let this affect his judgment, due to his bias. We were not referred to where it is contended the primary judge acknowledged the respondent’s dishonesty. Our search of the transcript reveals that the word “dishonest” was used once only throughout the entire hearing, as part of the respondent counsel’s submissions about the appellant’s evidence. As we have indicated above, the substantive reasons plainly manifest the primary judge’s preference of the evidence of the respondent over that of the appellant. The grounds for this are unimpeachable. No bias is apparent.Ground 10.2 – the primary judge’s language and reasoning suggest potential bias against the respondent, particularly in accepting the applicant’s allegations without apparent scrutiny.

Ratio Decidendi

Legal Principle Established

Insofar as this is a complaint about the adequacy of reasons, it has no merit. Amongst many other paragraphs, [204]–[208] provide a clear explanation for why it is not in the best interests of the younger children to communicate and/or spend time with the appellant.Ground 4.4 – no consideration of supervised visitation or other means to maintain father-child relationships. The appellant did propose supervised time for a short period as part of his substantive proposal to the Court. The children had previously spent supervised time with the appellant. The report recorded these facts but did not recommend supervised time. At paragraph 248 of the report, the report writer specifically adverted to the risk of the appellant’s “manipulation and undermining of their relationships with [the respondent]”, the reference being to the children. At paragraph 249, the report writer referred to supervised time with the appellant “for the purposes of keeping their identity formation”, thus alluding to recognition contact. The primary judge was therefore aware of these options. While his Honour was primarily focused on the safety of the children (see, eg, at [178]) he also considered their views (see, eg, at [181] and [192]). The findings of family violence are clear and have been identified above. The primary judge found that the appellant was not “a viable and safe parent” because of the family violence he perpetrated, and that the children “are at great risk” (at [208]). His Honour had clear evidence about the respondent’s “emotional and psychological perspective” (at [156] and [162]), and was very conscious of the need to protect the children from psychological and emotional harm (at [161]–[162]). His Honour found that the orders proposed by the appellant (which included a period of supervised time) would place the children in a position of unacceptable risk of psychological or emotional harm (at [204]). We are satisfied that these findings expose the reasons for not making an order as contended by the appellant (Bennett and Bennett (1991) FLC 92-191 at 78,266).Ground 10 – apprehended bias Ground 10.1 – despite acknowledging the respondent’s dishonesty, the primary judge’s bias was evident as it did not affect his judgment. We infer the appellant’s contention is that despite the primary judge acknowledging the respondent’s dishonesty, he did not let this affect his judgment, due to his bias. We were not referred to where it is contended the primary judge acknowledged the respondent’s dishonesty. Our search of the transcript reveals that the word “dishonest” was used once only throughout the entire hearing, as part of the respondent counsel’s submissions about the appellant’s evidence. As we have indicated above, the substantive reasons plainly manifest the primary judge’s preference of the evidence of the respondent over that of the appellant. The grounds for this are unimpeachable. No bias is apparent.Ground 10.2 – the primary judge’s language and reasoning suggest potential bias against the respondent, particularly in accepting the applicant’s allegations without apparent scrutiny.