KAMANO & KAMANO
[2015] FamCAFC 111
•12 June 2015
FAMILY COURT OF AUSTRALIA
| KAMANO & KAMANO | [2015] FamCAFC 111 |
| FAMILY LAW – APPEAL – CHILDREN – Where it is found that there is no merit in any of the grounds of appeal advanced by the mother – Appeal dismissed with no order as to costs. FAMILY LAW – APPEAL – Where ground of appeal and submissions by Counsel assert actual bias by pre-judgment by trial judge – Where no foundation for ground or submissions – Breach of Counsel’s duty – Referral to Bar Association of Queensland. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for leave to file application to adduce further evidence – No adequate explanation for delay and failure to comply with the Family Law Rules 2004 – Where even if leave given the asserted premise for the application to adduce further evidence is not made out – Application for leave refused. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 Chatzipantelis v Grimwade Costings [1966] VR 242 Council of the Queensland Law Society Inc v Wright [2001] QCA 58 Giannarelli v Wraith (1988) 165 CLR 543 Vozza v Tooth & Co Ltd [1963] NSWR 1675 White Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 |
| APPELLANT: | Ms Kamano |
| RESPONDENT: | Mr Kamano |
| INDEPENDENT CHILDREN’S LAWYER: | Craney Family Solicitors |
| FILE NUMBER: | NCC | 2413 | of | 2008 |
| APPEAL NUMBER: | EA | 73 | of | 2013 |
| DATE DELIVERED:: | 12 June 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 12 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 May 2013 |
| LOWER COURT MNC: | [2013] FamCA 348 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Merkin |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bateman |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Craney Family Solicitors |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kamano & Kamano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 73 of 2013
File Number: NCC 2413 of 2008
| Ms Kamano |
Appellant
And
| Mr Kamano |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By Notice of Appeal filed on 18 June 2013 Ms Kamano, the mother of the children J, born in 2002, and T, born in 2004, appeals against final parenting orders made by Cleary J on 22 May 2013 following a four day trial of parenting proceedings.
Each of Mr Kamano, the father of the children, and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
At trial the mother had ultimately sought orders for, inter alia, the parents to have equal shared parental responsibility for the children, for the children to live with her, and for them to spend three (3) overnight periods per fortnight with the father and, subject to his completion of a number of nominated courses, for half of each school holiday period.
The orders made by the trial judge on 22 May 2013 provide for, inter alia, the father to have sole parental responsibility for certain identified long term issues; for the children to live with the father for eight (8) overnight periods per fortnight and with the mother for the other six (6); and with each parent for half of each school holiday period.
In this appeal the mother seeks to have all of the orders made on 22 May 2013 set aside and for the proceedings to be remitted for re-hearing.
Three of the five grounds of appeal particularised in the mother’s Notice of Appeal (grounds 3, 4 and 5) were abandoned by the mother during the hearing of the appeal. Leave was given to the mother to amend her Notice of Appeal to include a further ground, effectively in substitution for abandoned ground 3. We will address each of the remaining grounds upon which the appeal proceeded, referring to the amended ground as ground 3.
Ground 1
Her Honour erred by denying the mother due process in restricting counsel for the mother in cross-examination of this witness in relation to the expert witness’s specialised expertise in domestic violence, where an issue in contention was the question of the specialised expertise of the expert witness.
Ms Merkin of Counsel for the mother (who also appeared for the mother at trial) clarified in argument of this ground that this complaint was not directed to any limit as to time being imposed by the trial judge upon her cross-examination of the expert. The complaint, as articulated by Ms Merkin, is that in the course of cross-examining the single expert, Dr R, counsel was prevented from challenging Dr R’s “expertise in domestic violence.”
This ground suffers from two fundamental impediments.
First, the case advanced by the mother below was not directed to findings against the father as to family violence. As was pointed out to Ms Merkin in the course of argument before this Court, over the course of more than four hours of her cross-examination of the father at trial no questions or propositions were put to the father directed to issues of family violence or to establishing any bases for findings about family violence.
That, understandably, led to objections being successfully taken at trial by each of counsel for the father and counsel for the ICL respectively to questioning by Ms Merkin of the expert Dr R, which questioning presupposed, or assumed, that a case about family violence had been mounted by the mother. In dealing with one such objection her Honour said, with respect correctly:
…Ms Merkin, this case has not been about family violence and there’s no findings that I am asked to make about family violence. There’s an incident where, in a carpark in the changeover – that – I’m not sure that it falls into that category, but there’s assertions on each side about that incident, and there’s the reference by your client to finding a reference to another contravention as a threat directed to her. But, otherwise, there isn’t any evidence of family violence.
(Transcript 13.3.13, page 286, lines1-6)
In circumstances where the mother’s case was not directed to advancing family violence as an issue the expert’s “expertise in domestic violence” (whatever that might mean) was not relevant to any issues joined between the parties.
Second, and perhaps even more fundamentally, as is recorded by her Honour at [20] of the reasons, in advance of the trial her Honour had dismissed the wife’s Application in a Case filed on 6 August 2012 by which the mother challenged Dr R’s expertise; and sought the appointment of another expert. There was no appeal from her Honour’s determination of that application and plainly any issue concerning Dr R’s expertise was so determined.
It is thus not legitimate for the mother to attempt, in this appeal, any
re-agitation of that same issue, even if family violence had been one of the issues joined in the proceedings (which it was not).
We find no merit in ground 1.
Ground 2
Her Honour erred when she made orders that reflected her Honour’s own researches suggesting the existence of a finding of alienation of the children by the mother.
Self-evidently, this ground is premised on the proposition that the trial judge made a finding of alienation of the children by the mother.
Whilst at [103] of the reasons for judgment her Honour, with reference to the evidence of Dr R referred to the children being “caught up in an alienation process” there was no finding by the trial judge that there was “alienation of the children by the mother” (emphasis added).
The fact that her Honour did not make the finding upon which this ground is premised is sufficient to dispose of it, but it is necessary to, nevertheless, address another aspect of this ground.
Asked to identify where, either within the orders made or the reasons for judgment, the trial judge had demonstrated, or exhibited, that the orders made “reflected her Honour’s own researches suggesting the existence of a finding of alienation of the children by the mother” counsel for the mother was unable to so do.
Counsel for the mother submitted though that this aspect of this ground was supported by the fact that her Honour had given an extra-curial presentation entitled “Alienation in High Conflict Cases”, in conjunction with a family consultant, at the 6th World Congress on Family Law and Children’s Rights in Sydney in March 2013.
No submissions were directed to us to demonstrate how it might be that the content of that presentation by her Honour of itself found reflection in any way in these proceedings. Nor did any submissions establish any connection between the content of that presentation and this case.
Indeed, the specific content of the relevant presentation was not addressed at all in argument by Ms Merkin. To the contrary, this Court pointed out to Ms Merkin during argument that her Honour had said, in the relevant presentation:
In my view, there is nothing more important than that a court hearing is a process of finding of fact and an application of the law to the facts found. It is not an exercise of identifying a type of case…
and:
Each case is a dispute, usually between parents, but sometimes others, as to appropriate arrangements and decision making for children. It is not an opportunity to apply labels outside legal expertise. Judges may know something, or very little about social science. Whatever the state of that knowledge it cannot be brought to bear on a case without there being evidence.
(Emphasis added)
Not only do these observations by her Honour correctly reflect the law, they are diametrically opposed to the proposition for which Ms Merkin contends in purported reliance upon this presentation as support for this ground.
This ground of appeal is not only devoid of merit but is fanciful.
The seriousness of the error contended for by this ground, and the fact that it, and the argument in support of it is so devoid of merit and so lacking in foundation as to be fanciful, raises serious concerns about Ms Merkin’s conduct in advancing it at all. The ground and the argument in support of it plainly suggest actual bias by pre-judgment. That is a serious assertion central to judicial integrity and the integrity of the judicial process.
The justification for reserving the practice of law to qualified lawyers is that lawyers, as officers of the Court, owe their paramount duty to the administration of justice. That principle is reflected in many published rules of professional conduct including the New South Wales Barrister’s Rules; the Queensland Barrister’s Rules and the Barrister’s Conduct Rules of the Australian Bar Association. That paramount duty is beyond doubt. (See Giannarelli v Wraith (1988) 165 CLR 543; White Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; Vozza v Tooth & Co Ltd [1963] NSWR 1675; Chatzipantelis v Grimwade Costings [1966] VR 242.)
That paramount duty incorporates:
a)A duty not to mislead the Court and as part of that duty not to cast unjustifiable aspersions on any party or witness (or judge); and
b)A duty to exercise an independent discretion or judgment to ensure that the conduct of the client’s case is in accordance with the dictates of the administration of justice; and
c)A duty to ensure that where serious discreditable misconduct is alleged to ensure there exists a proper foundation to so do (Giannarelli v Wraith (supra) and White Industries (QLD) Pty Ltd v Flower & Hart (a Firm) (supra)).
The duty also includes a duty to act honestly and with candour in all dealings with the Court. In Council of the Queensland Law Society Inc v Wright [2001] QCA 58 Justice McMurdo, President of the Queensland Court of Appeal, referred to the duty in these terms in dealing with disciplinary proceedings:
The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners’ submissions to the Court. This duty of candour and fairness is quintessential to the lawyer’s role as officer of the Court; the Court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but to reassure the public that such conduct on the part of lawyers will not be tolerated.
Here, not only was there no foundation at all for the ground and the argument in support of it, but at least part of the argument advanced was premised on a misleading statement as to the content of the presentation referred to. Ms Merkin’s misleading (and thus false) assertions made about the integrity of a judge without the slightest foundation is an abdication of Counsel’s paramount duty to the administration of justice and is deserving of the strongest condemnation.
We propose to have the Appeals Registrar forward these reasons for judgment and the relevant part of the transcript of the proceedings before us to the Bar Association of Queensland for it to take whatever action it considers appropriate.
Ground 3
Her Honour erred in not giving appropriate weight to the wishes of the children in circumstances where the children were asked about their wishes in secret.
The trial judge addressed, in her Honour’s reasons for judgment, under a heading identifying the relevant statutory consideration expressed in s 60CC(3)(a) of the Family Law Act 1975 (Cth) (“the Act”), the views of the children at [132] to [135] of the reasons.
Counsel for the mother did not identify any error by her Honour either as to the content of the children’s expressed views as recorded by her Honour; nor as to the context in which those views were expressed, namely, to the single expert Dr R during that expert’s interviewing process.
This challenge is thus, quintessentially, a challenge as to the weight given by the trial judge to just one of a number of many statutory considerations relevant to a judgment given in exercise of a discretion.
The strong presumption in favour of the correctness of such a decision may only be displaced if this Court is satisfied that it is clearly wrong. As Kitto J observed in Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621:
A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499 at pp 504, 505.
Nothing to which counsel for the mother directed our attention in respect of this ground provided any basis for this Court to displace the strong presumption in favour of the correctness of the decision made by the trial judge. Her Honour’s reasons for judgment amply reflect that her Honour correctly identified and carefully considered and balanced all of the considerations relevant to the exercise of her discretion, including the expressed views of the children as articulated in the paragraphs of the reasons for judgment to which we have made reference.
It has not been demonstrated that her Honour’s discretion miscarried in any way.
We find no merit in this ground.
Further evidence
At the hearing of the appeal we refused leave for the mother to file an application in an appeal seeking leave to adduce further evidence and the affidavit containing that further evidence. We advised then that we would incorporate our reasons for that refusal in these reasons, and we now set out those reasons as follows.
Rule 22.39(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides for an application to lead further evidence to be filed no later than 14 days before the commencement of the sittings in which the appeal is to be heard. Here the mother sought to file her application and affidavit on 7 May 2015, one business day before the commencement of the list in which the appeal was to be heard.
When asked by this Court to explain the failure to file this application in accordance with the Rules, counsel for the mother advised that she was waiting for the transcript, but then conceded that the transcript was received three months before. Counsel also suggested that a difficulty in preparing the documents was because the mother did not have access to the internet, but counsel conceded that the necessary instructions had been given at least three months before as well. Thus there was no adequate explanation for the failure to comply with the Rules.
However, the fundamental hurdle facing the mother in seeking leave to file the application and the affidavit was that the mother sought to file those documents so late that if permitted the father or the ICL would have had no opportunity to respond to the same; indeed, the father made it clear in his oral submissions that, given an opportunity, he would dispute the factual assertions in the mother’s affidavit. This was compounded by the failure of the mother’s counsel to give any notice, let alone timely notice, to the father or to the ICL that she had instructions to file such an application.
In these circumstances this Court refused to allow the application and the affidavit to be filed.
In any event, we observe that even if the application was permitted to proceed, there was no basis on which the further evidence would have been received by this Court.
Counsel for the mother submitted that the application was premised upon the fact that a finding by the trial judge was made that “the mother was over-medicating the children”, and that “clouded” her Honour’s judgment and provided a basis for Ground 2 of the grounds of appeal to succeed. That finding was said to be incorrect, as could be demonstrated by the further evidence sought to be adduced, and which evidence arose following her Honour’s orders.
Apart from there being no discernible link between the further evidence and Ground 2, the submission of course is fundamentally flawed because its premise does not exist. That is, there was no positive finding by the trial judge recorded in her Honour’s reasons that the mother was over-medicating the children.
As the premise was not established, and it was not otherwise demonstrated that the further evidence could illuminate any error as identified in any of the grounds of appeal which were argued, leave to adduce the evidence would have been refused.
Costs
Each of the father and the ICL sought orders for their respective costs in relation to the appeal, as against the mother, in the event her appeal was to be dismissed.
The mother depends upon social security benefits for her income; she resides in rental accommodation; and she has no assets of any substance, other than a second hand motor vehicle.
Orders for costs against the mother would, in these circumstances, impose some hardship upon her.
Whilst impecuniosity is not of itself a bar to the making of costs orders if there are justifying circumstances otherwise and the preponderance of relevant discretionary considerations overwhelms that factor, we are mindful that in this case the mother has the continuing care of the two children for six nights per fortnight. The hardship referred to would likely impact upon the children.
In all the circumstances whilst we have found no merit in this appeal, we are of the view that, on balance, there ought be no order as to the costs of the appeal, and the applications of each of the father and the ICL for costs orders are refused.
Conclusion
There being no merit in any of the grounds of appeal the appeal is to be dismissed.
There ought be no order as to costs of the appeal.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 12 June 2015.
Associate:
Date: 12 June 2015
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