KAVA & WINDSOR
[2015] FamCAFC 236
•10 December 2015
FAMILY COURT OF AUSTRALIA
| KAVA & WINDSOR | [2015] FamCAFC 236 |
| FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders made by consent which permitted the mother to relocate with the children to Singapore – Where the father maintains his consent was given under duress from his counsel – Whether a miscarriage of justice occurred – Where the evidence does not establish that the father’s consent resulted from duress – No error established – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) |
| Allan and Ors & Allan and Ors (2014) FLC 93-606 Gilbert v Estate of Gilbert (1990) FLC 92-125 Reid & Lynch (2010) FLC 93-448 Tindall & Saldo [2015] FamCAFC 1 |
| APPELLANT: | Mr Kava |
| RESPONDENT: | Ms Windsor |
| FILE NUMBER: | PAC | 3320 | of | 2010 |
| APPEAL NUMBER: | EA | 103 | of | 2015 |
| DATE DELIVERED: | 10 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan & Watts JJ |
| HEARING DATE: | 9 December 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 668 |
REPRESENTATION
| FOR THE APPELLANT: | In person (with the assistance of an Indonesian interpreter) |
| FOR THE RESPONDENT: | In person (by telephone) |
Orders
The father has leave to rely on paragraphs 44-54 of his affidavit sworn on 8 December 2015 as further evidence in the appeal.
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 Kava & Windsor 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 103 of 2015
File Number:
| Mr Kava |
Appellant
And
| Ms Windsor |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ryan J
By Amended Notice of Appeal filed on 27 August 2015, Mr Kava (“the father”) appeals against parenting and related orders made by Foster J under the Family Law Act 1975 (Cth) (“the Act”) on 24 June 2015. The orders were made with the consent of the father and that of Ms Windsor (“the mother”) and the Independent Children’s Lawyer (“ICL”).
Although the Notice of Appeal asserts 16 grounds of challenge, all bar three merely comprise assertions of facts and are incompetent. That is they are incapable of establishing an error of law. Of the remaining grounds, one is a complaint about the ICL’s failure to support the orders sought by the father at first instance. It too is incapable of establishing an error of law. These grounds cannot succeed and will not be referred to again.
The other two grounds in effect raise one challenge; namely that the father’s consent was given under duress from counsel who appeared for him such that his consent is no consent. In other words, as a result of duress the orders should be set aside as a miscarriage of justice. It is appropriate to mention here that no complaint is made about the conduct of the trial or anything done or not done by the trial judge.
The orders concern the parties’ children, X who was born in 2004 and Y who was born in 2009. As a consequence of the orders made by the primary judge, the children returned to the mother’s care and she was permitted to take them to live with her in Singapore. The mother is to have sole parental responsibility for the children and provision is made for them to spend time with the father in Singapore and Australia. There are various machinery orders designed to facilitate contact between the children and the father, manage the flow of information between the parties about the children and the like. It is unnecessary to set the orders out in full and sufficient to observe that although the father seeks to set aside all the orders, his central challenges are made in relation to the orders that the mother have sole parental responsibility, the children live with her and giving her permission to take them to live in Singapore (Orders 2, 3 and 4).
In the event error is established, the father seeks orders identical to those sought at first instance. In particular, that he has sole parental responsibility, the children live with him (in Australia) and spend time with the mother.
It is important to understand at the outset that the parties’ competing applications for parenting orders were listed for hearing before the primary judge and that the father was represented by counsel. The hearing which culminated in the consent orders commenced on 22 June 2015. It continued for three days and it was after the evidence closed that the agreement which resulted in the consent orders was reached. In addition to the evidence given by the parties, his Honour had evidence from various experts, including Dr FF who is a child and adolescent psychiatrist. The orders are consistent with those proposed by the ICL as being in the best interests of the children. Counsel for the ICL and the mother had completed their closing addresses.
Particular considerations arise when, on an appeal concerned with an error of law, an appellant challenges orders made with the appellant’s consent. It is well settled that the different nature of orders made by consent, compared to other orders, means that the grounds upon which a party to orders made by consent can appeal are more limited. Namely, “… the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence, or the absence of jurisdiction.” (see Allan and Ors & Allan and Ors (2014) FLC 93-606 at [64]; Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77,839).
The circumstances surrounding the making of the orders as revealed in the transcript of the trial
As the transcript of the trial demonstrates, on the third day of the hearing his Honour took the luncheon adjournment at 1.16 pm and indicated that when the hearing resumed at 2.30 pm counsel for the father would commence her closing address.
The hearing in fact resumed at 3.53 pm. The transcript makes it plain that an agreement on the major issues was reached during the interregnum and at the request of the parties his Honour delayed the resumption of the hearing so as to accommodate ongoing settlement discussions. When the hearing resumed at 3.53 pm counsel for the ICL informed his Honour the parties were agreed about most matters, a precis of which was provided orally. In so doing, counsel for the ICL informed his Honour “…[a]nd you will be pleased to see, your Honour, that the parties have even agreed on an increase to the father’s time on top of my minute if he were to travel to Singapore” (Transcript of proceedings, 24 June 2015, p 266, lines 10-12).
For the following 30 minutes his Honour teased out the detail of the proposed orders, such that there can be no doubt that those present must have understood the children were to live with the mother and, within a few days, would depart Australia for Singapore. During these exchanges his Honour complimented the parties on “a very sensible arrangement” and said he was satisfied the proposed orders established “…an arrangement that will benefit the children, particularly [X]. And, of course, it still ensures that they spend substantial time with their father in any event.” (Transcript of proceedings, 24 June 2015, p 271, lines 19-21)
His Honour also said:
But it will take away, I think, the overarching pressure of their wishes and also what clearly has been the regrettable circumstance of them being exposed to difficulties between [the mother] and the father, which goes back a long way, I think, from what I can understand. So I’m certainly delighted to be able to make the orders.
(Transcript of proceedings, 24 June 2015, p 271, lines 25-29)
At the very end of the day, the father spoke directly to his Honour. The exchange is set out below:
[THE FATHER]: Your Honour, can I say something? I don’t want to jump to the – miss my – I just want to say thank you, your Honour, for the last 16 months ..... and, honestly, I’m tired. I’m 47 now. I’m tired.
HIS HONOUR: Yes. Well, you’re going to have a much ‑ ‑ ‑
[THE FATHER]: And, honestly, I love my kids – and my kids – [the mother] is part of the kids’ life.
HIS HONOUR: Yes.
[THE FATHER]: And also the kids is my life. So, it’s another fight for my ..... the kids can make another decision, you know?
HIS HONOUR: Yes, course they can.
[THE FATHER]: Yes.
HIS HONOUR: And I think, [the father], that your relationship – the nature of the relationship ‑ ‑ ‑
[THE FATHER]: ..... sorry, [counsel for the father].
[COUNSEL FOR THE FATHER]: It’s okay.
HIS HONOUR: ‑ ‑ ‑ is going to improve as this settles in.
[THE FATHER]: Yes. I want – I want to do the best for them.
HIS HONOUR: Okay. All right.
[THE FATHER]: And also I just want to say thank you to [the ICL] for the ‑ ‑ ‑
HIS HONOUR: Her assistance on behalf of the children.
[THE FATHER]: ‑ ‑ ‑ very good – yes. Even some order is bad and good. I don’t – this – let it go.
HIS HONOUR: All right.
[THE FATHER]: Let it go. And also we want to do our kids full life. I’m – yes.
HIS HONOUR: Well, it’s for the – in the children’s – yes. Thank you, sir. Have a seat.
[THE FATHER]: Yes.
HIS HONOUR: Thank you very much for that. I’m delighted. All right. [counsel for the father] and your instructor, thank you. It’s been a difficult matter.
[ICL]: Yes. Thank you, your Honour.
(Transcript of proceedings, 24 June 2015, pp 282-283)
And further:
[THE FATHER]: And one more – sorry, your Honour. If I did something wrong – sorry. Sorry. This is the happy ‑ ‑ ‑
HIS HONOUR: No. You’ve done nothing wrong.
[THE FATHER]: Yes. Yes. I just want to say sorry, your Honour.
HIS HONOUR: Yes. No. That’s okay.
[THE FATHER]: If, by the last two months ‑ ‑ ‑
HIS HONOUR: You’ve run a case, and you’ve had your hearing. And now you’ve ‑ ‑ ‑
[THE FATHER]: Yes. And I don’t want to do that way. Yes.
HIS HONOUR: Now, the benefit you both have, if I can just say this, is that the children can now be told by the independent children’s lawyer that mum and dad have agreed to this arrangement.
[COUNSEL FOR THE FATHER]: Yes.
(Transcript of proceedings, 24 June 2015, p 284, lines 16-36)
There is nothing in the transcript which sounds in duress or pressure. Indeed the father’s remarks indicate not only his consent to the proposed orders but also his gratitude to the primary judge and counsel for the ICL for the manner in which they dealt with the proceedings. In this regard it needs to be understood that the father is no novice to family law litigation. For example, in 2012 these parties participated in a seven day final hearing in relation to the children. The father was represented by counsel. Stated broadly that hearing resulted in final orders that the children live with the mother, she have sole parental responsibility and for the children to spend time with the father. There were further proceedings in late 2012 and, of course, these proceedings commenced in early 2014. My point being, that as an experienced litigant his praise for the primary judge and ICL come from a background of knowledge about how courts operate and should not be seen as no more than uninformed relief that the current litigation was over.
In fairness to the father, there is no suggestion from him that we might find in the transcript of the trial or the material placed before the primary judge, evidence which would support his ground of appeal.
In this regard, the evidence upon which the father relies is contained in his affidavit sworn on 8 December 2015. Notwithstanding that an application to adduce further evidence in an appeal must be supported by a written application and, in this case, filed and served no later than 14 days prior to the appeal hearing (neither of which was done), we permitted the father to make an oral application to adduce further evidence in the appeal in accordance with this affidavit. The affidavit is approximately 153 pages and traverses a wide range of matters, including material which precedes the consent orders, material which was placed before his Honour, certificates, copies of documents produced under subpoena, circumstances surrounding the implementation of the consent orders and events thereafter.
It will be recalled that the purpose of seeking to adduce this further evidence was to establish the evidentiary foundation to impugn the orders. Of the large volume of material contained in this affidavit only [44]-[54] are relevant to the ground of appeal and could thus be admitted as further evidence in the appeal. In those paragraphs, the father recounts conversations with his counsel during settlement negotiations which he says demonstrate he acted under duress and the orders are different to those he agreed. In my view, this type of evidence might be considered contentious and presented for the first time on appeal in this manner, makes it extremely difficult for the party who seeks to uphold the orders to test or challenge the evidence. It seems to me the preferable course is that where a party seeks to challenge orders made by consent and in order to do so to introduce evidence for the first time which may be contentious, it is more appropriate that that question is first considered at trial.
However, each of the parties was unrepresented and neither had turned his or her mind to the law and matters of practice and procedure which should be applied in a case such as this. It follows that this is not an appropriate vehicle to determine whether an application with an issue of this type should always be dealt with at first instance (subject to appeal in the usual fashion) or can appropriately be raised for the first time on appeal.
In any event, in this case, it is expedient to receive the father’s evidence being [44]-[54] of his affidavit in the appeal. For reasons I will shortly explain, in my view, taken at its highest, the father’s evidence does not establish that his consent resulted from duress and is incapable of meeting what must be a high degree of satisfaction before final orders would be set aside on this basis. In this regard, I agree with the Chief Justice in Tindall & Saldo [2015] FamCAFC 1 at [5] where the Chief Justice said:
It is a serious allegation to say, as the mother did, that she was bullied and/or coerced into signing the orders. There are many reasons why parties compromise litigation: desire to conclude proceedings without resort to a hearing; desire to bring matters to an end so they can move on with their lives; cost; and advice about the risks of an adverse result are but a few. All bring pressures if the compromised outcome is not the desired outcome…
Turning then to the evidence upon which the father relies:
44.On 24th June 2015, last day of the hearing, after ICL gave submission, 1 hour for lunch break, from the huge stress impact, under pressure by my counsel to agree and sign of the of order (preliminary order) from order number 1 to order number 17 proposed by Independent Children Lawyer at court interview room number 23, level 2.
45.Around 3pm I need to decide and agree with ICL’s minute order or proposal. My counsel said to be effect of: “we need to climb very high mountain, the judge hate both of you and this is your best offer , you need to agree to it, must agreed with the consent order and believe me look at the example in the past that the mother will breach the order and in that time you can put contravention against her”
46.I replied, “give me one minute” and said to be effect of. “The mother has been x-exam so badly, and all the mother evidence in witness box were lie, the single expert supported the children live with the father, Please give me few minutes to think about it”
47.[Counsel for the father] said words to be effect of: ‘we need to decide now, the judge is waiting, i give you 30 seconds”,
48.I was scared, worried about all the situations, I was under duress, under pressured, stressed and depressed. No one help and support me as the father, on the very short period of the time, i can’t terminate the counsel during the last minutes before the counsel provide last Submission.
49.I did not understand effect of the consent order, negative impact of the consent order, and I did not aware about consent order number 20 to number 22, I did mistake by signing and to agree during under duress and under pressure.
50.I tried to call my God parents or my sister to ask, and [counsel for the father] angry, yelling and said words to be effect of: ‘your sister is not lawyer and i know this case, you won’t get any good point anymore, we can’t wait”
51.I told my counsel word to be effect of: “The mother as applicant has been abused and aggressive of this matter since 2010, I have been dealing this matter since 2010, I don’t want to give up, I wants Australia help the children so they can stay in Australia”, no reply from my counsel
52.I said to [counsel for the father], word to be effect of: “how about my response to initiating application” [Counsel for the father] just left me and entered the court room.
53.In my attitude, I am passion, patient and i said thankful to Family Court, I said thank you to all. But I realised I did mistake, by signed the consent order since the mother has bad attitude and bad performance toward the children and me.
54.When I received the consent order dated 24th June 2015 point 6F still there.
(Father’s affidavit sworn 8 December 2015) (as per original)
The obvious implication of [49] and [54] is that the consent orders are different to the proposed orders signed by the father. Indeed, before us, he said they were. As a consequence, the original consent orders were retrieved and provided to the father. Not without some difficulty, he eventually agreed that Orders 1-17 are in accordance with the orders signed by him. The remaining orders reflect orders made as a consequence of agreements reached during the hearing. Thus, to the extent that the father asserted that Order 6(f) was not contained in the orders he signed, his evidence must be rejected.
As to the remarks attributed to counsel for the father, it is important to remember that he does not purport to recite her actual words. Rather, counsel’s words set out in the father’s affidavit are words “to the effect” of what she actually said. Therefore, it is appropriate to be somewhat cautious in the approach taken to the father’s evidence of her remarks and, to thus treat the father’s evidence about his discussions with his counsel as his perceptions of the advice she gave him.
Considered in this light, counsel for the father gave him advice:
·at the close of evidence, his prospects of success were not good;
·that the trial judge had taken a negative view of the father and the mother;
·in her opinion, the father could not achieve a better outcome from the court than that proposed by the ICL (and the mother) and indeed he may do worse; and
·at some stage after 3.00 pm she told him he needed to decide whether or not there was an agreement.
The transcript of the trial provides ample evidence to support the advice given to the father by his counsel. Although the father’s evidence establishes that he felt pressured by the situation he was in, the degree of pressure was not undue and does not amount to duress. Considered in its entirety, the evidence given by the father does no more than establish that he made a forensic decision to settle the proceedings on terms which compromised the orders he sought, but which in totality were acceptable to him. Later on he changed his mind and now regrets having come to that agreement. These circumstances are not sufficient to amount to a miscarriage of justice and to justify interference with the orders.
By way of final observation, I agree with what is said in Reid & Lynch (2010) FLC 93-448 that a court should not lightly entertain an application to discharge, vary, suspend or revive a final parenting judgment (or order). In addition there are sound reasons why children should not be subjected to endless litigation about them and that the courts should strive to promote stability in the lives of children. The approach to the orders for which the father contends in this case would achieve anything but. Reid & Lynch is also authority for the proper approach to be adopted when the court is invited to make an order in relation to children with the consent of all parties. The court is no rubber stamp to such an agreement and has an independent obligation to satisfy itself that the orders are in the best interests of the children. His Honour was so satisfied and in my view, the evidence supported his conclusion.
The appeal should be dismissed.
The orders I propose are:
(1)The father has leave to rely on paragraphs 44-54 of his affidavit sworn on 8 December 2015 as further evidence in the appeal.
(2)The appeal be dismissed.
Bryant CJ
I agree with the orders proposed by Justice Ryan and the reasons for the making of those orders.
Watts J
I also agree with the orders proposed by Justice Ryan and the reasons for making the orders.
Bryant CJ
The formal orders of the court will therefore be:
(1)The father has leave to rely on paragraphs 44-54 of his affidavit sworn on 8 December 2015 as further evidence in the appeal.
(2)The appeal be dismissed.
(3)There be no order as to costs.
I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Watts JJ delivered on 10 December 2015.
Associate:
Date: 10 December 2015
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