Kaba & Zemin (No 2)
[2024] FedCFamC1A 169
•25 September 2024
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 Juris Lawyers Counsel for the Independent Children's Lawyer: Mr Keserovic 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:
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.
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).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, TREE & ALTOBELLI JJ
INTRODUCTION
By Amended Notice of Appeal filed 2 August 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. In relation to the procedural orders, leave to appeal was sought.
The substantive orders were final parenting and financial orders. The parenting orders afforded the respondent sole parental responsibility for the parties’ two, non-adult children (“the children”) who would live with her and spend no time with the appellant (with the exception that the eldest child could do so if she wished). The property orders effected a 70/30 division of the net property of the parties in the respondent’s favour.
The order dismissing the procedural application related to the appellant’s Application in a Proceeding filed 28 May 2024, seeking to reopen the evidence before the final judgment was pronounced in both the parenting and financial cases. The primary judge also dismissed the appellant’s disqualification application which, whilst not contained in said Application in a Proceeding, was clearly evident from the appellant’s supporting affidavit.
Having regard to the broad ambit of the contended grounds of appeal, it will be necessary to briefly explain the reasons given by the primary judge in dismissing the Application in a Proceeding, and in making the final orders in relation to the children and property.
Before doing so, and in order to provide more context, on 11 July 2024 Austin J dismissed the appellant’s Application in an Appeal filed 8 July 2024 (Kaba & Zemin [2024] FedCFamC1A 114 (“Kaba & Zemin”)) in which he sought multiple orders including: for the provision of a transcript at the Court’s expense; the vacation of the current hearing before the Full Court on 27 August 2024; the joinder of extra parties to the appeal due to allegations of misconduct; the extension of an order made in his favour under s 102NA of the Family Law Act 1975 (Cth) (“the Act”); a freezing order of the parties assets; the compulsory production by the respondent of certain documents; and the immediate suspension of the appellant’s child support liability.
In Kaba & Zemin, Austin J made several important observations. For example, at [10] his Honour assessed the appeal as appearing to lack the necessary merit to justify the Court bearing the costs of the transcript for the appellant. His Honour systematically identified and addressed many of the inherent problems with the grounds of appeal, and specifically the lack of competency of several of them. It is apparent to us that the appellant failed to consider Austin J’s clear cautionary statements about the lack of merit of the appeal generally, and of many of his grounds of appeal. Indeed, although the Notice of Appeal was amended on 2 August 2024, the amended grounds manifested no reflection about the matters raised by Austin J.
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
On 28 May 2024, the appellant, this time representing himself (as he did in the present appeal), filed an Application in a Proceeding which came before the primary judge on 4 June 2024 seeking a number of orders the effect of which were: to reopen the case in order to further cross-examine the respondent; for disclosure and production of further evidence including for the purpose of pursuing perjury and other legal actions against the respondent; for the provision of transcripts at the Court’s expense; and for the Court to order and approve additional legal aid for cross-examination purposes. The affidavit sworn 10 April 2024 in support of said Application in a Proceeding also clearly signalled to the primary judge an application for his recusal.
The subsequent orders of the primary judge dismissing the Application in a Proceeding were all interlocutory in nature (Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248 per Gibbs CJ). The test adopted in this Court, which was confirmed in Medlow & Medlow (2016) FLC 93-692 at [46], provides that leave to appeal will only be granted where the decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and, if leave were refused, a “substantial injustice” would ensue.
In seeking leave to appeal from the procedural orders made by the primary judge issues that the appellant raised before us he had unsuccessfully raised before the primary judge, and then before Austin J. In short, he had been told by two other judges of this Court that several of the orders that he was seeking were incompetent, or unsupported by the evidence. He nonetheless persisted before us.
Despite the above, as the appellant was representing himself, we have carefully examined the orders made, and reasons given, in a futile search for error.
It is apparent to us from a reading of the procedural reasons, that the primary judge understood, and dealt with, the substantive complaints of the appellant, notwithstanding the confusing form of the orders he sought. In short, he dealt with the issues that the appellant meant to agitate in the Application in a Proceeding and, we further note, none of the grounds of appeal in the application for leave to appeal before us contend that the primary judge misunderstood what he, the appellant, in fact sought. Indeed, we must observe, with all due respect to the self-represented appellant, that none of the 41 grounds of appeal in support of the application for leave to appeal seem to bear any correlation to the findings made, and reasons given by the primary judge in relation to the Application in a Proceeding filed on 28 May 2024.
Whilst we shall shortly discuss those grounds, as shall be seen, no error is found.
Particularly, none of the matters raised by the appellant gave rise to the apprehension of bias. The appellant was at all times represented by solicitor and counsel, who made no application at the relevant times during the hearing when the appellant’s stated concerns arose. This determines the issue (Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”)). Nonetheless, we observe that the primary judge correctly identified and applied the legal principles in relation to apprehension of bias. He identified, discussed, and consistent with the authorities, dismissed the concerns raised by the appellant. His Honour explained at [28] of the procedural reasons that despite the appellant’s view to the contrary, it was not the role of the Court to conduct its own investigation about contested factual matters. His Honour explained that the process was an adversarial one, notwithstanding the provisions of Div 12A of Pt VII of the Act. His Honour correctly rejected the appellant’s proposition that statements made during the hearing would have conveyed apprehended bias to a fictional observer.
The primary judge carefully considered the application to reopen the proceedings in order to adduce further evidence. Once again, he identified the appropriate authorities stating the principles to be applied. At [46] of the procedural reasons his Honour explained that, in essence, none of the evidence contained in the affidavit in support of the application assisted him in coming to a conclusion that it was in the interests of justice that it be received, or that it would affect the result. Indeed, his Honour observed that the appellant had ample opportunity to have introduced evidence during the substantive hearing but did not.
The primary judge was entirely correct in dismissing the Application in a Proceeding.
There is neither doubt, nor substantial injustice, for the purposes of the requisite test. Leave to appeal is refused.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court 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…
Ostensibly, there are 12 grounds of appeal but, in reality, almost all of the stated sub-grounds are in fact independent grounds of appeal totalling 41 grounds. All the grounds lack merit, but each will be briefly examined and discussed. We shall deal with the grounds contending bias and want of procedural fairness first (Concrete Pty Ltd v Parramatta Design & Development Pty Ltd (2006) 229 CLR 577).
At the heart of the appellant’s concerns about the orders appealed from is a deep dissatisfaction with the criminal proceedings he was involved in at the Local Court and the primary judge’s failure to delve into those proceedings. But as the primary judge clearly, and correctly, observed at [25] of the procedural reasons, it was a matter of court record that the appellant pleaded guilty to certain charges and was found guilty of other serious charges for which a sentence of imprisonment was imposed. Moreover, at [24] of the procedural reasons, his Honour correctly observed that the evidence in respect of the criminal proceedings was predominantly provided by the appellant himself, by way of annexures to his trial affidavit, and a separate bundle of documents which comprised an extensive transcript of the Local Court proceedings, sentencing remarks and submissions. This deep dissatisfaction with the criminal proceedings remained an undercurrent in the appeal before us.
Some further preliminary observations are necessary. The appellant represented himself and whilst he presented as an intelligent, articulate, and forceful advocate in his own cause, clearly he had no experience in the conduct of appeals. His Amended Notice of Appeal was prolix, confusing and unclear. His Summary of Argument did not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requiring a statement of the arguments setting out the points of law or fact and the authorities relied on, together with references to the relevant pages of the appeal book and transcript. We fully appreciate that a “frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy” (Neil v Nott (1994) 121 ALR 148 at 150). Despite this, the Full Court stated in Newett & Newett (No 2) (2021) FLC 94-051 at [34] that:
… whilst we accept that the mother is acting for herself, it is not for us to rummage around in the many affidavits, transcripts and decisions which the mother seeks to place before us in order to find material which may be relevant to the questions in the appeal. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. This was explained by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 …
We note that the appellant lists his grounds of appeal under numbered headings and some of the grounds are inconsistent with the heading they appear under.
Ground 2 – procedural unfairness
Ground 2.1 – the primary judge misinterpreted the term “conceding”, assuming certain matters were admitted. The appellant had not used this term until recently discovering it through online research.
Irrespective of the appellant’s belief that the primary judge misinterpreted the term “conceding”, it is clear to us that the primary judge correctly interpreted the appellant’s evidence both in chief, and in cross-examination, as containing admissions about certain matters including family violence. For example, at [140] of the substantive reasons, the primary judge identifies concessions made by the appellant about his anger and about showing the maternal grandmother naked photos of the respondent. Each concession is based on the appellant’s own evidence in cross-examination, in this case at Transcript 5 March 2023 p.225 lines 19–31.
Ground 2.2 – the questioning structure led to misconceptions about admissions, and inconsistent findings on domestic violence added to the uncertainty of the judgment.
The generality of this Ground of Appeal renders it impossible for us to adjudicate on it. Despite the appellant’s non-compliance with r 13.23(2)(a) of the Rules, we nonetheless gave him over an hour to make submissions. None of the submissions elucidated Ground 2.2. It must be remembered that the clearest evidence of family violence was adduced by the appellant himself.
Ground 2.3 – the primary judge discussed irrelevant topics like murder and child abuse, clouding the judgment.
We are satisfied from the substantive reasons and the transcript that the primary judge did not discuss the topics of murder and child abuse. We note that these terms were merely incidentally contained in certain quoted extracts from Full Court authorities and were not referred to either implicitly or explicitly by the primary judge.
Ground 2.4 – the judgment does not indicate whether the appellant had a fair opportunity to present his case or challenge the respondent’s allegations.
Once again, the absence of particulars makes it difficult for us to understand this ground of appeal. If the appellant contends that he was not given a fair opportunity to present his case, or to challenge the allegations made against him, our review of the judgment and the transcript leads us to conclude that there is no obvious error made by the primary judge. It was, in any event, incumbent on the appellant (on the facts of this case where the family violence perpetrated, and admitted by him, obviously had a profound influence on the outcome) to suggest how the procedural fairness denied to him would have altered the outcome (see Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609).
Ground 2.5 – there is no mention of cross-examination of the respondent regarding her claims of violence and financial control.
The fact that the respondent was in fact cross-examined suggests that this Ground of Appeal is not about procedural fairness. If the contention is that no reasons were given by the trial judge about this cross-examination, it is not necessary for the primary judge to detail each fact, or to make an explicit finding on each disputed piece of evidence (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 per Mahoney JA; Rafferty & Spencer (2016) FLC 93-710 at [30]). This is especially the case when such clear findings of credit have been made.
Ground 4 – Denial of natural justice
Ground 4.1 – potential abuse of process and fabricated allegations by the respondent were not adequately investigated.
Clear adverse findings were made in relation to the credit of the appellant. By contrast, positive findings were made in respect of the respondent. We reiterate that it was no part of the role of the primary judge to investigate.
Ground 4.2 – the primary judge hindered counsel for the appellant from challenging the respondent, resulting in assumptions and bias.
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.
This appeal ground duplicates Ground 7.2 above and for the same reasons has no merit.
Ground 10.2 – no indication of considering the possibility of false or exaggerated claims by the applicant.
This appeal ground duplicates Ground 7.3 above and for the same reasons has no merit.
Ground 1 – failure to consider evidence
Ground 1.1 – the primary judge overlooked key evidence, including Mr F’s affidavit, despite its rejection.
The key “evidence” is not identified. The reference to “[Mr F’s] affidavit” is a reference to an affidavit filed 29 February 2024 of the adult son of the parties, Mr F, given in support of the appellant’s case. Mr F was intended to be called by the appellant to give evidence in support of the orders sought, but he did not attend Court and was not called as a witness (the substantive reasons at [92] and [146]), and his evidence was ultimately not relied upon (Transcript 6 March 2024, p.367 lines 8–9). Contrary to the implied assertion, this evidence was not rejected by the primary judge. The appellant is bound by the manner in which his case was run before the primary judge (Metwally v University of Wollongong (1985) 60 ALR 68 at 71 (“Metwally”)).
Ground 1.2 – the primary judge failed to consider evidence of the respondent transferring recorded conversations using X’s school email and using X to gather information. This evidence was rejected by the primary judge.
As no particulars were provided in support of the grounds of appeal, and even after allowing the appellant to make submissions, the significance of this evidence remains unclear to us and we cannot see how it would have made a difference to the primary judge’s determination. We infer it was evidence relevant to the respondent’s credit. As recorded above, however, the adverse credit findings made against the appellant are soundly based and there is no glaring error in these findings. The main issue in the case was the risk of harm the appellant presented to the children as a result of the family violence he perpetrated on the respondent, often in the presence of the children. As the primary judge noted, the evidence of the criminal convictions was adduced in the appellant’s own case.
Ground 1.3 – the primary judge disregarded evidence that the respondent spoke to Mr F about financial matters, violating the Registrar’s orders.
The significance of this evidence is unclear to us. Once again, we cannot see how, on the facts of the case, it would have made a difference.
Ground 1.4 – the primary judge restricted cross-examination of the respondent on evidence presented by the appellant, often interrupting the appellant’s counsel. This led the appellant to email his lawyer to stop the proceeding and seek new counsel.
We are satisfied from reading the transcript of the cross-examination that the primary judge acted appropriately, and consistent with his powers under s 69ZX of the Act, to limit and direct counsel for the appellant’s cross-examination of the respondent. We agree with his Honour’s own reflection set out at [31] of the procedural reasons that he “considered there was a need at times for the [appellant]’s counsel to be given a direction as to focus”.
Ground 1.5 – the primary judge heavily relied on the respondent’s allegations of family violence without adequately considering the respondent’s denials or alternative explanations.
In effect, the appellant contends that the primary judge placed disproportionate weight on the respondent’s allegations of family violence compared to his own evidence. The relevant findings as to credit have been set out above. Not only are the findings of the primary judge about family violence not plainly wrong (Gronow v Gronow (1979) 144 CLR 513 at 519), but they are also in fact plainly right.
Ground 1.6 – there is no mention of considering Mr F’s perspective, despite his significant role in the family dynamics.
There was no evidence before the Court from Mr F because circumstances led the appellant to ultimately choose not to read his affidavit. In any event, Mr F’s perspective was provided to the Court through the report and is found at [144]–[146] of the substantive reasons.
Ground 3 – Failure to consider financial evidence
Ground 3.1 – financial statements since 2020 were ignored, with the primary judge influenced by unrelated criminal proceedings against the appellant.
The absence of particulars again makes this Ground difficult to understand. Various “financial” statements were in evidence (see, eg, Exhibits 3, 6–7 and 10). The parties separated in 2019 so the relevance of statements “since 2020” is unclear.
Ground 3.2 – the primary judge failed to investigate debts and misleading statements from the respondent and her lawyer, leaving the appellant unfairly responsible for financial issues.
It was no part of the role of the primary judge to investigate anything, let alone the matters referred to in this Ground (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]–[20]). The appellant was informed of this by the primary judge in the procedural reasons (at [28]). This was reiterated by Austin J (Kaba & Zemin at [19]).
Ground 3.3 – the primary judge did not adequately consider the appellant’s consistent highlighting of financial issues.
We do not know, and the appellant did not explain, precisely what is meant by this appeal ground. We find no obvious error in the treatment of financial issues by the primary judge.
Ground 5 – Inadequate reasons and unjustified assumptions
Ground 5.1 – the primary judge made baseless assumptions, including the appellant’s payment of $75,000 for Mr F’s schooling without the respondent’s contribution.
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.
In relation to s 75(2) factors, discussed from [258], the primary judge systematically considered and made findings in relation to the relevant factors. He noted the respondent’s modest income and the minimalist child support paid monthly by the respondent. At [264], he found the appellant’s evidence about his employment opportunities and intention to be unconvincing, and at [273], found that the appellant could find employment if he chose so to do. Nonetheless, he concluded that there was no credible evidence that would suggest that the appellant would be able to make an appropriate level of financial contribution to the expenses incurred by the respondent for the children.
As he was entitled to do, his Honour at [267] took into account the legal fees, costs and disbursements incurred by the parties prior to the commencement of the hearing, noting that the respondent would likely incur fees in the vicinity of $66,000 whereas the appellant had the benefit of a grant under s 102NA of the Act, and thus had no legal fees. His Honour made the following powerful observation at [269]: “[t]he stark reality is that the [appellant], found to be the perpetrator of family violence, receives funding for the proceedings whereas the [respondent] is liable for her fees”. In those circumstances, his Honour decided to bring to account the respondent’s fees as a s 75(2) factor. At [276], his Honour concluded that the various s 75(2) factors should be reflected in an adjustment in favour of the respondent of 15 per cent, noting that this produced a differential of $176,290. This resulted in a 70/30 division in favour of the respondent, which his Honour concluded was just and equitable.
We find no deficiency or inadequacy in the reasons given by the primary judge.
Ground 5.6 – inadequate explanation for such a significant adjustment based on alleged redirection of rental income.
For the reasons identified in Ground 5.5 above we find no merit in this ground of appeal.
Ground 6 – apprehended bias of the Independent Children’s Lawyer and the Single Expert
Ground 6.1 – the Independent Children’s Lawyer and Single Expert showed bias towards the respondent, failing to investigate her statements.
Any contended bias of the ICL and/or the report writer should have been ventilated at the final hearing, particularly in the context where the appellant was legally represented by solicitor and counsel (see Vakauta). There is no evidence before us that this took place, and the appellant cannot now raise this fresh issue on appeal.
Ground 6.2 – the Single Expert’s credibility was questionable, with inaccuracies and dishonesty under cross-examination.
The appellant’s counsel did, in fact, cross-examine the report writer (Transcript 7 March 2024, p.432 line 1 to p.435 line 43). The primary judge deals with the evidence of the report writer from [131]–[166]. At [166], his Honour concluded that the “evidence of the report writer was not the subject of effective challenge and I consider that his evidence should be given considerable weight”.
Ground 6.3 – no mention of thorough examination of parties’ financial statements or contributions throughout the marriage.
We note that the primary judge was not required to conduct a “thorough examination” of the parties’ financial circumstances or contributions. His Honour was obliged to and did consider the evidence presented to the Court by both parties in relation to these issues and, as we have indicated above, provided proper reasons.
Ground 6.4 – lack of discussion on how specific figures in the property settlement were determined.
The lack of particularity in this Ground of Appeal makes it impossible for us to discern the appellant’s complaint. Given that his Honour’s reasons for the addbacks and assessment of contribution and s 75(2) factors is comprehensive and transparent, we see no obvious error.
Ground 7 – Ineffective assistance of counsel
Ground 7.1 – the appellant received ineffective counsel, with instructions ignored and no retrial application made, acknowledged by the primary judge on 4 June 2024.
We infer that the appellant raises the issue of incompetence, even though he used the word “ineffective”. For the appellant to succeed on the basis of incompetence of counsel, he would need to demonstrate that the incompetence of counsel was such that the appellant was not afforded a fair trial, or it produced a miscarriage of justice (TKWJ v The Queen (2002) 212 CLR 124). The Full Court in Maddax & Danner [2016] FamCAFC 176 at [69] confirmed that in a parenting case, an appellant would need to establish that: counsel was incompetent or the forensic decisions were wrong; those decisions affected the judgment; and but for those matters, a different result would have been reached.
There is no evidence before us of “instructions ignored” or “no retrial application made”. The contention that this was “acknowledged” by the primary judge on 4 June 2024 is both mischievous and misleading. At [31] of the procedural reasons his Honour made clear: “[t]hat does not in any way suggest that there was an issue relating to competency”.
The lack of particularity once again makes it difficult for us to discern the basis of the appellant’s complaint. Doing the best we can, we discern no obvious issue about the competence of the appellant’s counsel, and we doubt very much that even if we are wrong in our assessment, that it produced a miscarriage of justice given the clear findings made by the primary judge adverse to the appellant.
Ground 7.2 – the primary judge’s language and reasoning suggest potential bias against the appellant, particularly in accepting the respondent’s allegations without apparent scrutiny.
This appeal ground duplicates Grounds 1.5, 2.5 and 4.1 (relating to the lack of scrutiny of the respondent’s allegations) and 4.2 and 6.1 (relating to bias) above. For the same reasons, we find that Ground 7.2 has no merit.
Ground 7.3 – no indication of considering the possibility of false or exaggerated claims by the respondent.
This Ground of Appeal duplicates Grounds 1.5, 2.4, 2.5, 3.2, 4.1 and 7.2 and for the same reasons, we find it has no merit.
Ground 8 – failure to consider source of funds
Ground 8.1 – the primary judge failed to inquire about the respondent’s $227,000 in legal fees and other financial discrepancies, including unauthorised use of the appellant’s credit cards and damage to his property.
Once again, the primary judge was under no obligation to “inquire” about anything. The absence of particulars makes it impossible for us to determine whether the matters contended by the appellant were in fact presented in evidence before the primary judge. No obvious error is apparent.
Ground 8.2 – no mention of thorough examination of parties’ financial statements or contributions throughout the marriage.
Despite the lack of particularity of this appeal ground, we infer that it relates to inadequate reasons about finances and contributions. This duplicates Ground 3 and Ground 5 and has no merit.
Ground 8.3 – lack of discussion on how specific figures in the property settlement were determined.
As above, we infer that this Ground of Appeal relates to inadequate reasons about finances and contributions, which duplicates Grounds 3 and 5 and similarly has no merit.
Ground 9 – misconduct by the respondent’s lawyers
Ground 9.1 – misleading financial statements and falsehoods presented by the respondent’s lawyers were not addressed by the primary judge, indicating bias.
The lack of particularity of this Ground of Appeal is problematic. We note that the respondent was cross-examined by the appellant’s counsel including about financial matters. No obvious error is apparent to us.
Ground 11 – unfair judgment
Ground 11.1 – the judge failed to adequately consider the respondent’s dishonesty and lack of credibility, paralleling issues in the Higgins v Lerman case, suggesting an unfair judgment.
Once again, this seems to be an attack on the findings of the primary judge about credit and has been dealt with above at Grounds 1.2, 1.5 and 4.1. For the same reasons, this Ground lacks merit.
Ground 12 – no penalties for mother holding back children against the Registrar’s orders
Ground 12.1 – the primary judge failed to impose any penalties on the mother for holding back the children against the Registrar’s orders.
No order was sought by the appellant in relation to the matters asserted in this ground. This Ground is incompetent.
Ground 12.2 – it appears that everything is forgiven due to domestic violence allegations and local court findings, which undermines the fairness of the judgment.
Due to the generality of this contention, and the absence of any particulars, we cannot discern an appeal ground.
CONCLUSION ON APPEAL GROUNDS
All the grounds of appeal lack merit and fail. The appeal will be dismissed.
COSTS
The appellant has been wholly unsuccessful in the appeal (s 117(2A)(c)).
The appellant’s conduct of the appeal is problematic, particularly in advancing grounds of appeal that merely replicate contentions that were rejected by the primary judge in the procedural reasons, and more significantly were rejected by Austin J in Kaba & Zemin.
The respondent sought indemnity costs in the sum of $17,500 but has not complied with r 12.13(4). Her counsel conceded that party/party costs would be about $10,000 which we consider to be just and, accordingly, we order the appellant to pay the costs of the respondent fixed pursuant to r 12.17(1)(a) in the sum of $10,000 within 28 days.
The ICL sought indemnity costs in the sum of $5,002, the effect of which would be to indemnify the Legal Aid Commission of New South Wales in relation to the costs of the appeal. As r 12.13(4) has no role to play in this context, we find the quantum sought to be just. An indemnity costs order is appropriate for the following reasons.
The authorities in this Court concerning the occasion when costs may be ordered on an indemnity basis are well known (see Kohan and Kohan (1993) FLC 92-340; Yunghanns v Yunghanns (2000) FLC 93-029).
In Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 (“Colgate-Palmolive”), Sheppard J emphasised that there should be some “special or unusual feature in the case to justify the court in departing from the ordinary practice” and provided examples of circumstances that might justify an award of indemnity costs.
In Munday v Bowman (1997) FLC 92-784 at 84,660, Holden CJ referred to the decision of Sheppard J in Colgate-Palmolive, and set out a number of examples of circumstances which might attract indemnity costs, as follows:
(a) Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts (see Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. [1988] 81 ALR 397.
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud (see Fountain Selected Meats (Sales) Pty. Ltd. (supra).
(c) Evidence of particular misconduct causing loss of time to the court and to other parties (see Tetijo Holdings Pty. Ltd. v Keeprite Australia Pty. Ltd (unreported, Federal Court, 3 May 1991)).
(d) The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (see Ragatta Developments Pty. Ltd. v Westpac Banking Corporation (unreported Federal Court, 5 March 1993)).
(e) An imprudent refusal of an offer to compromise.
However, the categories of cases in which indemnity costs can be ordered is not closed (Phillips & Hansford (2020) FLC 93-941 at [36]).
The appellant was entirely unsuccessful. Had he sought legal advice, it is highly likely he would have been advised that many, if not all, of his grounds of appeal were doomed to fail.
His conduct of the appeal was problematic. He failed to consider his lack of success before the primary judge in the procedural application that was the subject of his application for leave to appeal before us. Even more significantly, he plainly ignored the observations about his grounds of appeal made by Austin J in Kaba & Zemin. These alone justify an indemnity costs order.
However, there are several disturbing features of the appellant’s conduct in this case that provide another basis for the indemnity costs order in favour of the ICL. The fact of the serious family violence perpetrated by the appellant on the respondent is self-evident. His plea of guilty before the Local Court operated as an admission of guilt to all elements of the offence with which he had been charged (R v Maitland [1963] SASR 332). He then appealed the sentence, but not the conviction. The primary judge then made findings of family violence that were not exclusively dependent on the appellant’s convictions in the Local Court.
At paragraph 25 of the Child Inclusive Conference Memorandum to Court dated 24 August 2020, the report writer records that the appellant claimed the respondent “has previously been diagnosed with Post Traumatic Stress Disorder”. Notwithstanding this, the appellant conducted this appeal in a fashion that we are concerned was potentially re-traumatising for the respondent.
In view of the evidence of the report writer about the appellant that was before the primary judge, this is perhaps unsurprising. At paragraph 214 of the report, the appellant was described as having 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… He also appears to hold and display entitled and chauvinistic beliefs and attitudes …
We acknowledge that the report writer prefaced these comments on the acceptance of the respondent’s allegations about the appellant. For all practical purposes, that is precisely what the primary judge did. Of interest, at paragraph 258 of the report, the report writer also observed the appellant “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… and wanting to exact some sort of retribution on [the respondent] for leaving the relationship”.
The totality of this evidence could easily justify the conclusion that at least part of the appellant’s motive in bringing this unsuccessful appeal was to further coerce and control the respondent, having previously contended that she suffered from post-traumatic stress disorder. But even irrespective of the appellant’s motive, it is arguable that the impact of the unsuccessful appeal was to further traumatise the respondent. It is regrettable that this did not become apparent to us until our deliberations commenced on conclusion of the hearing. Steps might otherwise have been taken to mitigate the potential risk of re-traumatisation such as not requiring the respondent to appear in person, or even at all in some cases. It is a consideration for future similar cases, whether at first instance, or on appeal.
However, these were not matters which we raised in the appeal with the appellant, and hence while all arguable – and even strongly so – we do not rely upon them as the justification for indemnity costs here.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Tree & Altobelli. Associate:
Dated: 25 September 2024
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