Kantor and Jeong (No 2)
[2022] FedCFamC1A 61
•12 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kantor & Jeong (No 2) [2022] FedCFamC1A 61
Appeal from: Jeong & Kantor [2021] FedCFamC2F 24 Appeal number(s): NAA 32 of 2021 File number(s): BRC 1055 of 2019 Judgment of: TREE J Date of judgment: 12 May 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders providing for the children to live with the mother and spend substantial time with the father – Whether the primary judge denied the father procedural fairness and/or natural justice – Apprehended bias – Adequacy of reasons – Whether the primary judge failed to take into account relevant considerations – Weight challenges – No ground of appeal established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
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
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 43 Date of hearing: 28 April 2022 Place: Cairns (via video link) Counsel for the Appellant: Litigant in person Counsel for the Respondent: Mr Moxon Solicitor for the Respondent: Legal Aid Queensland ORDERS
NAA 32 of 2021
BRC 1055 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KANTOR
Appellant
AND: MS JEONG
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
12 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Kantor & Jeong (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Mr Kantor (“the father”) appeals from final parenting orders made by the primary judge on 8 September 2021 in proceedings between him and Ms Jeong (“the mother”) relating to their four children.
The appealed orders provide for the children to primarily live with the mother, and to spend time with the father for four nights per fortnight during school terms, and half of the school holidays. The father also appeals orders providing for him to have telephone communication with the children once per week, for him to advise the mother 24 hours in advance if he intends to attend school events and an order dismissing all extant applications. The mother resists the appeal.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The father was born in 1975 and is presently aged 47 years. The mother was born in 1980 and is presently 41 years of age.
The parties formed their relationship in 2005, commenced cohabitation in 2008 and were married later that year. They finally separated in July 2018. The children are presently aged 13, 12, 9 and 5.
After separation, the parties were able to agree on the parenting arrangements for the children, which saw them live primarily with the mother and spend ad hoc time with the father. The parties’ relationship thereafter started to deteriorate and conflict ensued about the living arrangements for the children.
On 30 January 2019, the mother commenced these proceedings. Subsequently, various interim orders were made and a family report and psychiatric report in relation to the mother were completed.
At the time of the trial, as a result of the current interim orders at the time, the children lived with the mother, with the older two children spending time with the father four nights per fortnight and the younger two children two nights per fortnight.
The father’s proposal at trial was for the children to live with him and, subject to them being “safe” in the mother’s care, to spend equal time with each parent. The mother sought orders that the children live with her and spend each alternate weekend with the father, being a reduction of the children’s time with him that was occurring at the time.
The primary judge ultimately made orders for equal shared parental responsibility (which order is not the subject of appeal), for a continuation of the current arrangements for the children’s time with the father (four nights per fortnight, albeit that applied to all four children under the final orders), and for half school holiday time together with some ancillary parenting orders.
THE APPEAL
The father filed his original Notice of Appeal on 6 October 2021, however the grounds contained in that document were not proper grounds of appeal nor were the 44 pages of narrative accompanying them. Consequently on 3 November 2021, Austin J made orders striking out the grounds of appeal and allowing the father a short time frame to file an Amended Notice of Appeal pleading competent grounds, in the absence of which his appeal would be summarily dismissed. On 1 December 2021, the father filed an Amended Notice of Appeal which agitated the following grounds of appeal:
1. … [The primary judge] has failed to consider evidence...
2. The Judge has failed to accord procedural fairness...
3. There was a denial of natural justice…
4. [The primary judge] gave inadequate reasons for his decision…
5.[The primary judge] was biased against me…Even going so far as to scream at me and call me “a coward”…
6.[The primary judge] has acted on wrong principle, allowed irrelevant considerations to influence his judgement, he has mistaken the facts, … has failed to take material considerations into account, and he has reached unreasonable decisions that are plainly unjust…
(As per the original)
Unfortunately, none of the father’s Summary of Argument, his submissions in reply, nor his oral arguments, much assisted in understanding the grounds of appeal further, and thus his challenges to the orders in relation to the grounds are difficult to understand. Doing the best I can, I will first deal with the father’s grounds which go to procedural fairness, natural justice and bias (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577), and turn to the remaining grounds thereafter.
It also bears repeating that the primary judgment is presumed to be correct unless it can be established that the discretion of the primary judge miscarried in one or more of the ways identified in House v The King (1936) 55 CLR 499 at 504-505 (“House v The King”). An appeal is not an opportunity for the appellant to rerun their case at trial in an attempt to convince the appeal court that it should, absent appealable error of the kind identified in House v The King, nonetheless come to a different conclusion.
Grounds 2 & 3 – Denied procedural fairness & natural justice
The father claims under these grounds that he was denied procedural fairness and natural justice by the primary judge, although nowhere in his written or oral submissions were particulars or examples identified of where or how this was done by the primary judge.
The father was permitted to file and rely upon two affidavits of himself, one affidavit of his adult son, to cross-examine witnesses, to tender subpoenaed material which became exhibits in the trial, and was allowed to make submissions regarding the case.
If the father’s complaint under these grounds is in relation to the primary judge’s refusal to allow one of the father’s witnesses to give further oral evidence in chief, that must be rejected. It is clear from the transcript that the father agitated for his adult son to “speak to” certain evidence contained in the family report, and to other issues about his relationship with the mother. The primary judge denied this course and correctly stated that the witness should have included that evidence in his affidavit, and to allow further oral evidence without notice to the mother would be a denial of procedural fairness to her.
It appears the father’s challenges under these grounds are really an expression of his dissatisfaction with the outcome of the decision by the primary judge, and I cannot find any instances where procedural fairness or natural justice has been denied to the father. These ground fail.
Ground 5 – Bias
It is not clear from the father’s Amended Notice of Appeal or submissions whether the complaint is of apprehended bias or actual bias. I will assume the ground is based on an apprehension of bias.
The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]).
The inquiry into an apprehension of bias requires two steps: first, the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters, and secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [8]).
As to the first step, the father alleges that the primary judge screamed at him and called him a coward. However, that allegation is not borne out in the transcript. After the father made submissions to the primary judge that people in the Court have hurt him, this exchange occurred:
HIS HONOUR: Who do you think has done that in this courtroom?
[THE FATHER]: I’ve been hurt, your Honour, by being self - - -
HIS HONOUR: No, who has done the hurting?
[THE FATHER]: I’m not going to blame, your Honour. I’m just - - -
HIS HONOUR: I’m asking you what you meant by your submission. Answer my question.
[THE FATHER]: I’ve been hurt by things I’ve been accused of, your Honour.
HIS HONOUR: By who?
[THE FATHER]: By everyone that has accused me.
HIS HONOUR: Name them – in this courtroom. That’s what I thought: you didn’t have the courage. You don’t have the courage to stand up to the submissions that you’ve made. I told you, before, I’m not going to tolerate you disparaging the legal practitioners on the other side. Everybody is entitled to legal representation that comes into this courtroom, and those legal representatives have a duty to their client and to the court. Make your next submission. This job is hard enough without having to put up with ridiculous submissions like that.
(Transcript 9 December 2020, p.278 lines 14–37)
It is apparent from that exchange that the primary judge was critical of the father not standing behind his submissions which sought to disparage the Court and the mother’s lawyers, however that is quite distinct from directly calling the father a coward. Even if this conduct satisfied the first limb of the test in Ebner, the father has failed to demonstrate the logical connection between his Honour’s comments and the feared deviation of his Honour deciding the case on its merits.
The father’s complaint of apprehended bias has not been made out, and this ground fails.
Ground 1 – Failed to consider evidence
The father does not clearly identify which part of the evidence he asserts the primary judge failed to consider, although in oral submissions he referred to some material he tendered on the last day of trial. Subject to that, it appears the father’s challenge under this ground goes to the weight the primary judge attributed to certain evidence, and particularly the psychiatric report relating to the mother and the family report.
The difficulty of challenging on appeal a trial judge’s attribution of weight is well known. As was stated in Gronow v Gronow (1979) 144 CLR 513 at 520 “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”, unless the result achieved is unreasonable or plainly unjust. The father’s complaint that the decision was plainly unjust will be considered under Ground 6.
The father asserts that the primary judge did not give “high priority” to the assessments and conclusions in the psychiatric report. It is clear from his Honour’s reasons that he considered the expert’s opinion of the mother’s mental state in the psychiatric report (at [24]–[27]), but even on the expert’s own view, those opinions were dependent upon the resolution of his Honour’s findings of the factual issues in the case (at [26] and [28]). It was noted throughout the psychiatric report that it was difficult for the expert to draw any firm conclusions given the divergence between the parties’ factual accounts. Notably, his Honour said this at [74]:
74.I am not satisfied that [the mother’s] mental health presents a risk of harm to these children. [The expert’s] opinion was that if I was accepting of all of the factual matters relied upon by [the father] then there might be reason to be concerned about aspects of [the mother’s] personality. However, I am not satisfied of all of the factual matters upon which [the father] relies, as I have set out above, and accordingly, I am not satisfied that the concerns flagged by [the expert] in his report that were dependent upon those factual matters are valid. To the extent that [the father] argues that until [the mother] meets the recommendations made in [the expert’s] report, the children should have supervised contact with her, I reject his argument. Moreover, I reject his argument that it is necessary for [the mother] to meet or satisfy whatever recommendations he perceives might appear under the heading “recommendations” in [the expert’s] report.
The primary judge did not accept all of the factual matters contended for by the father, and thus as the expert himself said, his Honour was not obliged to give those recommendations which were adverse to the mother any substantial weight.
The father also appears to challenge the weight given to the recommendations in the family report by the primary judge. He says that the family report writer’s conclusions should be “struck out as they have been proven false and negatively impacted the process of the Court and negatively impacted the children” (Father’s Summary of Argument filed 28 February 2022, p.1). How the family report writer’s conclusions proved false and negatively impacted the children is not clear. The recommendations in the family report were also not firmly advanced, as they too depended upon the primary judge’s findings in respect of the parties’ competing factual accounts.
The father alleges that the primary judge failed to take into account the father’s allegations that the mother perpetrated physical and emotional abuse on the children, the father and his adult son. However those allegations are addressed directly in the reasons for judgment at [5], [68], and [70]. Notably, at [70] his Honour found the mother has physically disciplined the children as the father alleges, so how the primary judge failed to take those matters into account is quite unclear. Again, if this complaint is a mere weight challenge, it fails, as the weight attributable to the evidence is quintessentially a matter for the primary judge.
Finally, as to the alleged failure to consider psychological counselling records tendered by the father on the last day of trial, contrary to the father’s oral submissions, they were explicitly referred to by the primary judge at [19] and [68].
This ground fails.
Ground 4 – Inadequate reasons
Neither this ground, nor the submissions made under it, provide any particularisation as to which parts of the reasons for judgment were inadequate.
In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
However, it is not necessary for a judge who is exercising a discretionary judgment to detail each fact which they have found to be relevant or irrelevant, nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient if the inference of a finding is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Rafferty & Spencer (2016) FLC 93-710 at [30]).
It is apparent from the reasons for judgment that his Honour identified the parties’ competing proposals, and the evidence in chief and cross-examination to which he had regard, and made findings in relation to both the mother’s and father’s evidence and their credibility. It is also clear that his Honour addressed the relevant factors relating to the children’s best interests under s 60CC of the Family Law Act 1975 (Cth) at [69]–[116], and then proceeded to make his conclusions at [117] onwards.
The path by which his Honour reached his decision is therefore sufficiently disclosed in the reasons for judgment. This ground also fails.
Ground 6 – Wrong principle, irrelevant considerations, mistake of fact, failed to take material considerations into account, plainly unjust decision
This ground of appeal encompasses several alleged grounds which need only to be addressed briefly.
The father does not identify which principle the primary judge wrongly applied. The approach of the primary judge in reaching his conclusion has already been addressed under Ground 4 where no error was found.
Again, the father did not identify which irrelevant considerations were taken into account under this ground. From his Summary of Argument, it is perhaps discernible that he is referring to the family report writer’s evidence, which the father asserts was irrelevant given the passage of time between the interviews and the reasons for judgment, and also the process by which the interviews were conducted. However if that be the father’s claim, it is without merit. Whilst somewhat dated, the family report was nonetheless admitted into evidence. The fact that the report writer refused the father’s offer to provide the children with lunch on the day of the interview, but permitted the mother to take the children to lunch prior to her observation of them with the mother, could not possibly infect the primary judge’s decision with error.
The father’s complaint that the primary judge failed to take into account relevant considerations has already been dealt with under Ground 1 above.
The last complaint under this ground is that the primary judge’s decision is manifestly unjust or plainly wrong. It must be remembered that the father sought equal time, but the primary judge ordered a 4/10 split in favour of the mother, which comprises substantial and significant time, and was an increase in the time which the two younger children spent with the father. There is nothing demonstrably unreasonable about such an outcome, the reasons for which were adequately explained by the primary judge at [126]. Therefore absent appellable error as asserted by the other grounds of appeal, this ground cannot succeed.
Conclusion
As no ground of appeal has been established, the appeal will be dismissed.
COSTS
In the event the appeal failed, the legally aided mother sought an order for costs in the sum of $3,901. Whilst the appeal has been unsuccessful, the mother is indeed legally aided and the father is impecunious. There will be no costs order.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 12 May 2022
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