Kardamov and Kardamov & Anor
[2015] FamCAFC 93
•21 May 2015
FAMILY COURT OF AUSTRALIA
| KARDAMOV & KARDAMOV AND ANOR | [2015] FamCAFC 93 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks to adduce further evidence – Where the further evidence comprised an affidavit commenting on various parts of the transcript of the hearing before the trial judge and three annexures to that affidavit – Where it was determined that the contents of the affidavit would be received on the basis that it comprised further submissions by the applicant – Where the annexures to that affidavit were not admitted. FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal the decision of the trial judge dismissing her application to reopen parenting proceedings – Where neither the facts in support of the application nor the proposed grounds of appeal (none of which have merit) establish a basis for leave to be granted – Application for leave to appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the first respondent seeks costs – Where the first respondent is in receipt of a grant of legal aid – Where the applicant opposes such an order on the basis of her poor financial circumstances and the fact that she cares full-time for her disabled daughter – Where the application for leave to appeal has been wholly unsuccessful – Costs ordered in favour of the first respondent. |
| Family Law Act 1975 (Cth) – ss 67ZC, 68B(2), 118 and Div 12A CDJ v VAJ (1998) 197 CLR 172 |
| APPLICANT: | Ms Kardamov Snr |
| FIRST RESPONDENT: | Ms Kardamov |
| SECOND RESPONDENT: | Mr Piper |
| FILE NUMBER: | BRC | 7232 | Of | 2011 |
| APPEAL NUMBER: | NA | 14 | Of | 2014 |
| DATE DELIVERED: | 21 May 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Strickland & Murphy JJ |
| HEARING DATE: | 29 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 February 2014 |
| LOWER COURT MNC: | [2014] FamCA 103 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Neaves |
SOLICITOR FOR THE FIRST RESPONDENT: | David Grant and Associates |
| THE SECOND RESPONDENT: | No appearance |
Orders
In relation to the Application in an Appeal filed on 15 September 2014, the handwritten material in the affidavit filed on that day in support of the Application be received as further written submissions, and the Application otherwise be dismissed.
The Application for Leave to Appeal be dismissed.
The applicant pay the costs of the first respondent of and incidental to the Application for Leave to Appeal, such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kardamov & Kardamov and Anor 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 BRISBANE |
Appeal Number: NA 14 of 2014
File Number: BRC 7232 of 2011
| Ms Kardamov Snr |
Applicant
And
| Ms Kardamov |
First Respondent
And
| Mr Piper |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 14 March 2014 Ms Kardamov Snr (“the applicant”) seeks leave to appeal, and if leave is granted, to appeal against an order made by Forrest J on 17 February 2014 dismissing an application by her for leave to reopen parenting proceedings, as determined by orders of Flohm J on 7 December 2007 (see Kardamov & Kardamov and Anor [2007] FamCA 1737).
The application is opposed by Ms Kardamov (“the mother”) and Mr Piper (“the father”). The father though did not appear at the hearing of the application.
The applicant, by Application in an Appeal filed on 15 September 2014 also seeks to adduce further evidence on the application for leave to appeal.
Background
The applicant was born in 1948, and was aged 66 years at the hearing before his Honour.
The applicant has six children including the mother. One child, her daughter, E, has a disability and lives with the applicant who cares for her.
The father was born in 1981, and was aged 32 years at the hearing.
The mother was born in 1984, and was aged 29 years at the hearing.
The mother has four children, S (born in 2001), J (born in 2003), M (born in 2006), and B (born in 2009).
In March 2000 the mother and the father began cohabitation, and when the mother became pregnant with their first child they moved into the applicant’s home. The parties remained living there until January 2002.
In mid-2011, the applicant withheld the children from the mother after an arranged visit. The children were returned to the mother pursuant to a recovery order filed in around June 2011.
The mother was unemployed at the time of the hearing, and is the primary caregiver of the children.
The father works as a technician. He commenced a relationship with Ms Piper in August 2008 and they moved to South Australia in January 2013. The father now lives with her and their daughter in Adelaide.
The mother continues to live in Queensland and was pregnant at the time of the hearing before his Honour.
Summary of ex-tempore reasons for judgment delivered on 17 February 2014
The trial judge commenced the reasons for judgment by summarising the previous proceedings before Flohm J and the orders made by her Honour on 7 December 2007.
It was the applicant’s case at that trial that the children live with her, or in the alternative that they spend time with her on a fortnightly basis and at other times. Flohm J essentially dismissed her application, final orders were made that the children live with their parents and that they spend time with the applicant at times agreed by their parents. Relevantly, Forrest J recorded that her Honour made an order that the applicant not file any further application for parenting orders without first obtaining leave from a Judge of the Family Court.
The trial judge then traversed some of the findings made by Flohm J in her reasons for judgment, summarised as follows:
a)The applicant has a limited capacity to meet the emotional needs of the children, and there was no evidence that this was likely to change (at [3]).
b)The applicant’s “readiness to involve outside authorities” and general suspicions of the parents’ care of the children could potentially destabilise the young family.
c)The maternal family had been “divided” by the applicant’s litigation (at [4]).
d)The applicant was “obsessed” with the parents’ conduct as having an impact on the children, and she would most probably continue to litigate (at [5]).
e)The applicant’s “poisonous” attitude to the parents was based on a combination of a desire to punish them and a desire to be proven right in relation to the appropriate standard of parenting (at [6]).
f)The applicant had the “real potential” to compromise a meaningful relationship between the children and the parents (at [7]).
The trial judge then recorded that Flohm J made the order sought by the Independent Children’s Lawyer (“ICL”), namely that the applicant seek leave of a Judge of the Family Court before making any further applications, given the potential for the applicant to re-litigate the same issues in the future.
His Honour then recorded that the current application was just that, an application for leave to be allowed to re-litigate or reopen the parenting proceedings. The mother opposed that application as did the father who did not appear before his Honour but filed an affidavit to that effect.
The trial judge recorded that the applicant, if leave was granted, sought that all four children live with her (noting that the mother had had another child since the hearing before Flohm J), and even submitted that the mother’s current unborn child also live with her (at [14]).
The trial judge then recorded the evidence of the applicant, comprising a lengthy affidavit which, in essence, criticised the mother’s parenting abilities. There was also a further affidavit filed by the applicant responding to the affidavit relied on by the mother.
The trial judge referred to an incident in mid-2011 where, after the mother had left the children with the applicant to spend some holiday time together, the applicant relocated with the children and failed to return them. The mother was successful in obtaining a recovery order from the court, and the police executed that order and returned the children to the mother.
The trial judge recorded that the applicant’s case for reopening was essentially based on the same material relied on before Flohm J, and in particular matters said to arise from her observations of the children when they were in her care, allegedly involving sexual, emotional and physical abuse at the hands of the mother, and at the hands of others whilst in the care of the mother (at [18]). The trial judge noted that the applicant also raised these allegations with Legal Aid, the police, and with welfare and other governmental agencies, none of whom were satisfied that any action was warranted based on these allegations.
The trial judge then recorded that the application before him was prepared by the applicant based on all the material that came to her knowledge in 2011, some two years before she filed the application for leave to reopen the litigation. Furthermore, the trial judge recorded that the applicant had not seen the children since 2011, as the mother did not communicate with her following the retention of the children, and the resulting recovery order.
The trial judge then considered the affidavit of the mother who deposed that from September 2011 and onward, she was subjected to departmental investigations about the care of her children, which included visits to her home by the relevant agencies, all instigated by the applicant.
The trial judge observed that he knew nothing of these investigations, however found that the outcome was that the children were left in the care of the mother, indicating a degree of satisfaction by the Department in relation to the care that the mother was providing to the children.
The trial judge then concluded as follows:
24.I am not satisfied on the evidence that the maternal grandmother put before me that there is any reason to believe that the matters of fact found by Justice Flohm to exist in respect of the maternal grandmother’s attitude to her daughter and her daughter’s parenting and the interfamilial relationships have changed. Nothing that the maternal grandmother puts before me persuades me that the children’s best interests in this case, and, after all, that is what I am statutorily bound to consider as the paramount consideration in this determination, warrants the re-visitation at this point in time of parenting issues where the maternal grandmother seeks again to agitate for parenting orders that the children of her daughter live with her instead of with their mother. I appreciate that she has concerns about her grandchildren, that she clearly loves them and would very much like to play a part in their lives, especially as she moves towards the twilight of her own life and as they rapidly move towards adulthood.
25.However, the nature of the relationship between the maternal grandmother and the mother and indeed the father of these children is clearly a very poor and virtually non-existent one. I do not even begin to unravel how that has come about or why or who is principally responsible or whether one person can be blamed and the other one cannot, but what I do note is that until the maternal grandmother withheld the children from their mother and raised all these allegations against their mother, the children were spending, what looked to be from the photos the grandmother showed the Court, some happy times with their maternal grandmother. It seems that the maternal grandmother’s own actions may be very significantly responsible for the mother’s determination to not have any relationship with her own mother and to stand in the way of the children having a relationship with their maternal grandmother.
26.I am not satisfied that the children’s best interests are served at this stage of their lives by again subjecting them to a bitter parenting dispute in this Court between their parents who, although separated, are at one and united in their position, and their maternal grandmother who has previously been before the Court and agitated many of the same issues to such an extent that a Judge of this Court determined she should not be allowed to do so again in the future without the leave of the Court.
27.I am not convinced that leave should now be given and I will not be giving it. I dismiss the maternal grandmother’s Application in a Case filed 7 June 2013.
Application in an Appeal filed 15 September 2014
The applicant seeks to adduce further evidence as comprised in her affidavit filed on the same date.
Apart from there being three annexures, the affidavit essentially comprised comments by the applicant on various parts of the transcript of the hearing before the trial judge, including a repeat of matters raised in her written submissions.
The three annexures are respectively:
a)A letter from the New South Wales Police acknowledging a report by the applicant of an unidentified incident.
b)A letter from a Family Relationship Centre enclosing a blank s 60I Certificate.
c)A letter from the applicant’s general practitioner comprising a brief character reference, and a psychologist’s report comprising a psychological assessment of the applicant undertaken at the request of the applicant’s lawyer.
At the hearing of this application we determined that we would receive the contents of the affidavit not as further evidence, but on the basis that it comprised further submissions by the applicant.
In relation to the annexures, we determined that they should not be admitted, and we dismissed the application to that extent. Simply put, those annexures are not relevant to this application, and in any event do not demonstrate error by the trial judge in accordance with the principles established in CDJ v VAJ (1998) 197 CLR 172. In particular, we note that in relation to the psychological assessment, the mental health of the applicant was not in issue in the proceedings before the trial judge.
The application for leave to appeal
The facts relied on in support of the Application for Leave to Appeal are as follows:
1. That the children aged 13, 11, 8, 4 are bordering adulthood.
2. That the applicant did not go to Ministers & Media.
It is entirely unclear how it is said that these facts establish an error of principle or a substantial injustice (Rutherford & Rutherford (1991) FLC 92-255), and nothing was put in either the applicant’s written or oral submissions to clarify that issue. However, it must be remembered that the applicant appeared before his Honour and before us without legal representation, and thus we will consider her proposed grounds of appeal to determine whether they establish the elements necessary for leave to be granted.
The proposed grounds of appeal are as follows:
1.I appeal [sic] for leave to appeal on the following grounds. His Honour Justice Forrest – discriminated against my caring for children as I took care of my disabled daughter, and it was stated I am in my twilight years.
2.The time spent in court was full of comments which were prejudice [sic] against me.
3.My affidavit filed on 7th June 2013 - is sound and well presented and was ignored.
The applicant seeks the following orders in her Notice of Appeal:
1.To obtain leave, permission to have the matter, heard in court.
2.To have the order of Honourable Justice Forrest dismissed.
Discussion
Before embarking on a discussion of the proposed grounds of appeal, it is instructive to reflect first on the basis of the order made by Flohm J requiring leave to reopen the litigation, and secondly, on what the trial judge needed to consider in determining the application for leave that was before him.
At the time of the hearing before Flohm J there were four possible sources of power for the order that she made, namely, s 118 of the Family Law Act 1975 (Cth) (“the Act”), r 11.04(1) of the Family Law Rules 2004 (Cth) (“the Rules”), s 67ZC of the Act, or s 68B(2) of the Act. They provided as follows:
Section 118 FRIVOLUS OR VEXATIOUS PROCEEDINGS
118(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just, and
(c)if the court considers appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
118(2) A court may discharge or vary an order made by that court under paragraph (1)(c).
RULE 11.04 FRIVOLOUS OR VEXATIOUS CASE
11.04(1) If the court is satisfied that a party has frequently started a case or appeal that is frivolous, vexatious or an abuse of process, it may:
(a) dismiss the party’s application; and
(b)order that the party may not, without the court’s permission, file or continue an application.
S 67ZC ORDERS RELATING TO WELFARE OF CHILDREN
67ZC(1) In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
…
67ZC(2) In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Note: Sections 60CB to 60CG deal with how a court determines a child’s best interests.
S 68B INJUNCTIONS
…
68B(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
We can immediately discount s 118 and r 11.04(1) because as can be seen, with the former the court first needed to be satisfied that the proceedings were frivolous or vexatious, and with the latter the court first needed to be satisfied that the party had frequently started a case or appeal that was frivolous, vexatious, or an abuse of process; Flohm J clearly did not make either of these findings prior to making the order that she did.
That leaves s 67ZC or s 68B(2).
The problem of course is that her Honour did not identify the section which she was applying, and there is an important difference between these two sections. With s 67ZC the court is obliged to have regard to the best interests of the children in reaching a decision, whereas that is not the case with s 68B(2) (because an order under that subsection is not a parenting order). In that regard it is apparent that in making the order her Honour did take into account the best interests of the children. Thus, that points to s 67ZC as the source of power.
However, interesting as this debate may be, and despite us raising it, it is unnecessary for us to make a finding about it because it is not directly relevant to the application for leave to appeal. There was no appeal against
her Honour’s order, and this issue was not raised or argued before us.
Perhaps then the more relevant question is the second question that we have posed.
In effect his Honour appears to have looked to see if there had been a significant change of circumstance to justify reopening the litigation in relation to the children, and he found there was not such a change.
That approach is the approach that is utilised when the court is considering whether it will permit the reopening of litigation where a party seeks to alter final parenting orders. Under the principles established by the Full Court in Rice & Asplund (1979) FLC 90-725, such a change of circumstance as would warrant the reopening of the litigation must be established. There are obvious similarities between that situation, and that confronting his Honour, and we are satisfied that his Honour’s approach was the appropriate one.
We now turn to the proposed grounds of appeal.
Proposed Grounds 1 and 2
As is plain, the grounds of appeal are inexpertly drawn, but it is apparent from the written and oral submissions that Grounds 1 and 2 raise similar challenges, and thus it is convenient to deal with those two grounds together.
It is suggested that his Honour “discriminated” against the applicant caring for children on two bases. First, because she was taking care of her “disabled daughter”, and secondly because she is in her “twilight years”.
As to the first basis, nowhere in his Honour’s reasons does his Honour say anything that can be interpreted in the way the applicant suggests. There is this exchange though in the transcript of the hearing before his Honour:
HIS HONOUR: Well then, I’m asking why you’re handing the photographs up to me. They show a happy, healthy bunch of kids.
MS [KARDAMOV SNR]: To show that I’m not a danger, your Honour. I’m not a danger. What the children get put through is the danger.
HIS HONOUR: It looks to me like you might have your hands full looking after your other daughter, your adult daughter, who’s got [a disability].
MS [KARDAMOV SNR]: She’s wonderful, your Honour. She ---
HIS HONOUR: I appreciate that, I imagine she is. But I don’t imagine that she’s without need for care.
MS [KARDAMOV SNR]: I’ve got a good support system, your Honour, and the children love her and she loves the children.
HIS HONOUR: I imagine they do too, yes.
MS [KARDAMOV SNR]: Yes.
HIS HONOUR: I have no doubt about that. And so she’s obviously in a fair need of care herself. They’re all very lovely photographs, Ms [Kardamov Snr]. I’m sure they will provide you with a lot of happy memories of time with your grandchildren. You can have them back. I’m sure you don’t want the court to keep them.
MS [KARDAMOV SNR]: Thank you for looking at them, your Honour. Thank you for looking at them, your Honour.
HIS HONOUR: That’s okay. I appreciate that the children that we deal with as the subject of these proceedings are actually people and are loved by people like yourself and it’s important to understand what we’re dealing with.
(Transcript 17.2.14, page 25 line 20 – page 26 line 3)
We see nothing untoward with the comments that his Honour made to the applicant in this extract, and in particular we are not persuaded that those comments in any way “discriminate” against the applicant caring for children. Thus there is no merit in this aspect of the proposed ground.
As to the second basis, his Honour did say this in [24] of his reasons for judgment (as referred to earlier in these reasons):
… I appreciate that she has concerns about her grandchildren, that she clearly loves them and would very much like to play a part in their lives, especially as she moves towards the twilight of her own life and as they rapidly move towards adulthood.
However, we agree with the submission of the mother that his Honour was not there discriminating against the applicant because of her age. It is beyond doubt that his Honour was there just being descriptive of the applicant’s stage of life, and nothing more. Thus there is also no merit in this aspect of the proposed grounds of appeal.
It is next suggested that his Honour made “comments” which were prejudicial to the applicant. It seems that the major complaint here is that she was “cut off” by his Honour questioning her and “firing accusations” at her, and in short, not letting her “tell her story”.
In her written summary of argument and her submissions contained in her affidavit filed on 15 September 2014, the applicant has taken us to those parts of the transcript of the hearing before his Honour where she says that her complaints in this regard are demonstrated. However, we are not persuaded that any comments made or questions asked by his Honour were anything other than his Honour ensuring that the applicant stayed on track and focused on the issues that were relevant to the hearing. That task is a primary obligation of a trial judge under Div 12A of the Act.
In any event, we do not accept that his Honour prevented the applicant from telling her story. As the mother emphasised in her submissions, the applicant was able to set out the relevant facts that she wanted to rely on in her affidavit material, and she did that. Moreover, although there was necessary questioning and challenging of the applicant during the hearing by his Honour, there is no part of the transcript that we were taken to which could be described as “cutting off” the applicant and preventing her from telling “her story”. Thus, there is also no merit in this aspect of the proposed grounds.
Proposed Ground 3
This is also an unmeritorious ground of appeal. His Honour said this in his reasons for judgment:
15.The evidence upon which the maternal grandmother relies is in her affidavit filed on 7 June 2013 and then a fresh affidavit that she filed on 13 February 2014 which is essentially a response affidavit to evidence of the mother that was filed. The affidavit that the maternal grandmother relies upon is lengthy, about 13 pages long, with 290 paragraphs, in very small font and with no spacing between the paragraphs. It is clearly written and prepared by the grandmother herself. It contains a long narrative of allegations. In summary, they can be described as allegations against the parenting capacity of the mother in this case.
His Honour then addressed the allegations that the applicant made in her affidavit material as amplified by her in her oral submissions in [18] – [23] of his reasons for judgment, and then reached the conclusions that he did in [24] – [27] as we have set out above.
Conclusion
There is no basis established in either the facts relied on in the Notice of Appeal, or in any of the proposed grounds of appeal that would justify this court in granting leave to appeal. In short, there is no error of principle by the trial judge or a substantial injustice to the applicant in the order that his Honour made. Thus, the application for leave to appeal must be dismissed.
Costs
At the conclusion of the hearing we sought submissions on costs from the parties depending on the result of the application for leave and the appeal if leave was granted.
In the event that the application for leave was unsuccessful the mother sought an order for costs in her favour; she being the recipient of a legal aid grant.
The applicant opposed an order for costs in the event that her application failed. She relied on her poor financial circumstances, and the fact that she was a full-time carer of her disabled daughter.
The application for leave to appeal has been wholly unsuccessful and thus there is a clear circumstance justifying an order for costs. Although we are sympathetic to the financial circumstances of the applicant and the fact that she cares for her disabled daughter, it has been her entirely unmeritorious application which has led to the mother having to instruct legal representatives and obtain a grant of legal aid. Accordingly, we propose to make an order for costs in favour of the mother.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Strickland & Murphy JJ) delivered on 21 May 2015.
Legal Associate:
Date: 21 May 2015
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