Khadem & Penk
[2020] FamCAFC 211
•27 August 2020
FAMILY COURT OF AUSTRALIA
| KHADEM & PENK | [2020] FamCAFC 211 |
| FAMILY LAW – APPEAL – PARENTING – Where the father sought to reopen his case due to alleged incompetence by his former counsel – Where the primary judge refused to grant leave for the father to reopen his case – Where the father alleged denial of procedural fairness – Where it could not be shown where the father’s former counsel had failed to conduct the father’s case properly – Whether the primary judge erred when making findings about the father’s credibility and demeanour – Where the primary judge was entitled to make those findings based upon all the evidence and her Honour’s own observations – Where the primary judge made no error when making the orders in respect of parental responsibility about medical and educational decisions, including in respect of vaccinations, in the mother’s favour – Where the primary judge made no error when considering s 60CC(3) of the Family Law Act 1975 (Cth) matters – Where it was open to the primary judge to make an order that the father only engage with the child’s health practitioners in certain ways – Appeal dismissed – Costs ordered in a fixed amount. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appeal hearing was conducted on Microsoft Teams due to the COVID-19 pandemic – Where the father sought leave to reopen the hearing of the appeal – Where the father claims he was denied procedural fairness due to technology failure – Where the father had all of the materials ahead of the appeal – Where the Full Court had the advantage of written submissions prior to the appeal hearing – Where counsel for the father did not alert the Full Court to technology failures or difficulties during the hearing – Where the father is seeking to reargue his case following the benefit of having heard the exchange between counsel and the Bench – Application dismissed – Costs ordered. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to adduce further evidence after the Full Court had settled the Orders and reasons but before the judgment was delivered – Where the new material sought to revisit and perpetuate centrally disputed issues – Where the criteria for admission of further evidence on appeal is not met – Where the application has no reasonable likelihood of success – Application for leave to adduce further evidence is summarily dismissed. |
| Family Law Act 1975 (Cth) ss 60CA, 60CC, 64B, 65D, 68B, 70NAE, 93A Family Law Rules 2004 (Cth) rr 1.10, 10.12 |
| Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Devries v Australian National Railway Commission (1993) 177 CLR 472; [1993] HCA 78 Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133 Flanagan and Handcock (2001) FLC 93-074; [2000] FamCA 150 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 OP v TP (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 SCVG & KLD [2011] FamCAFC 100 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Khadem |
| RESPONDENT: | Ms Penk |
| FILE NUMBER: | DGC | 1940 | of | 2012 |
| APPEAL NUMBER: | SOA | 55 | of | 2019 |
| DATE DELIVERED: | 27 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Kent, Watts and Austin JJ |
| HEARING DATE: | 6 May 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2524 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levine |
| SOLICITOR FOR THE APPELLANT: | Maciel Pizzorno & Co |
| COUNSEL FOR THE RESPONDENT: | Dr Smith |
| SOLICITOR FOR THE RESPONDENT: | Kennedy Partners |
Orders
The Application in an Appeal filed 20 April 2020 be dismissed.
The Application in an Appeal filed 13 May 2020 for leave to reopen the appeal be dismissed.
The Application in an Appeal filed 12 August 2020 be summarily dismissed.
The Amended Notice of Appeal filed 27 April 2020 be dismissed.
Within three months the appellant pay the respondent’s costs fixed in the sum of $20,109.36.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khadem & Penk has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 55 of 2019
File Number: DGC 1940 of 2012
| Mr Khadem |
Appellant
And
| Ms Penk |
Respondent
REASONS FOR JUDGMENT
Introduction
By an Amended Notice of Appeal filed 27 April 2020, Mr Khadem (“the father”) appeals parenting orders in relation to Z, born in 2010, (“the child”), made by the primary judge on 11 September 2019. Ms Penk (“the mother”) opposes the appeal. For reasons which follow, the appeal shall be dismissed.
Background
At the time of the hearing before the primary judge, the father was 48 years of age and the mother was 41. The parties commenced living in a de facto relationship in 2008 and married in late 2009. The parties separated on a final basis in April 2012. In April 2015 the mother re-partnered.
In June 2012, the father commenced parenting proceedings in the Federal Circuit Court of Australia which were resolved by way of consent orders on 10 July 2013. Pursuant to those Orders, the parents had equal shared parental responsibility and the child was to spend gradually increasing time with the father so that by the commencement of Term 2 in 2015 he was spending six nights a fortnight with the father. Otherwise, the child was to live with the mother. There were other orders made including in relation to: holiday time; special occasions; mediation if there was a dispute in relation to parenting arrangements; and requirements for each parent to keep the other informed about issues in respect of the child’s health. Relevantly to this appeal, there was an Order “[t]hat each of the parties shall comply with the recommendations of the child’s treating practitioner, Dr B as to the regime for the child’s vaccinations”.
In May 2015 the child commenced child and family psychotherapy with Mr C which continued twice fortnightly, at least to the date of the hearing, and since November 2015 has focused primarily on coping strategies to reduce the child’s symptoms of anxiety.
On 9 June 2017 the mother filed an Initiating Application which sought final orders for equal shared parental responsibility for the child save that the mother have sole parental responsibility for education and medical treatment, including mental health. On 26 July 2017 the father responded seeking that he have sole parental responsibility for education, medical treatment, including mental health, and the issuing of a passport. The father also sought that his time with the child be increased by one night a fortnight so that the child was spending equal time with both parents.
On 23 May 2018 the father amended his response seeking an order that the child spend three nights and one afternoon each fortnight with his mother but otherwise live with his father. On 22 January 2019 the father filed a Further Amended Response where he changed his application for the child to spend time with the mother two nights a fortnight.
The final hearing proceeded before the primary judge on 29 and 30 January 2019. In those two days, the parties, the mother’s current partner, the Family Consultant and the child’s psychotherapist gave oral evidence and by the end of the second day, the evidence had concluded. The primary judge adjourned the matter for final submissions to 31 January 2019.
On 31 January 2019 counsel for the father announced to the Court that “my instructions have been withdrawn by my client”. Counsel for the father sought to be excused and also sought that his instructing solicitors be able to withdraw from the record. Leave was granted for the father’s solicitors to withdraw from the record and for counsel for the father to be excused. The father disputed he had instructed his lawyers to withdraw. He sought, and was granted, an adjournment for one week.
On 7 February 2019 the father was represented by counsel, who also appears on the appeal, who made an oral application to reopen the father’s case. Counsel for the father sought to lead further evidence by recalling the mother, the Family Consultant and the child’s psychotherapist and cross examining them again. It was the father’s position that his former counsel had failed to comply with the father’s instructions as to how cross-examination of those three witnesses was to take place. The father also sought that he give further evidence by way of examination about an incident on 23 February 2015 and the text messages that had passed between the parties at that time.
On 7 February 2019 the primary judge dismissed the father’s application to reopen the case after which the primary judge received closing addresses and reserved judgment.
On 11 September 2019 the primary judge made final orders substantially in the terms as sought by the mother and relevantly:
·For the mother to have sole parental responsibility for the child’s education and medical treatment, including mental health but for the parties otherwise have equal shared parental responsibility;
·For the mother to provide the father with notice of decisions made and necessary information concerning decisions that she had made whilst exercising sole parental responsibility;
·That the father be required to facilitate the implementation of the mother’s decisions in respect of education and medical treatment and to refrain “from acting in contradiction to the advice or treatment plan provided by the [mental and physical health] practitioners” (“Order 4”);
·The child’s living arrangements during school term were to remain as they had been since the second term of 2015, namely, an 8/6 arrangement per fortnight in the mother’s favour;
·Various other orders in relation to holidays, special days, changeover, telephone communication, and not denigrating the other parent; and
·Both parties were restrained from taking the child overseas without the other’s written consent and the father’s application in relation to overseas travel was dismissed.
The Grounds of Appeal
The Amended Notice of Appeal contained 23 grounds of appeal. Seven of them were abandoned. The appellant’s Summary of Argument renumbers the remaining grounds and it was agreed, during oral submissions, we should adopt that numbering.
The grounds of appeal relate to:
a)The primary judge’s refusal to grant the father leave to reopen his case (Grounds 1, 2 and 1A);
b)The primary judge’s findings about demeanour and credibility (Grounds 3, 5, 5A and 4);
c)The primary judge’s allocation of parental responsibility (Grounds 6, 11 and 12);
d)The primary judge’s findings about the child’s vaccinations (Grounds 7 and 8);
e)The primary judge’s findings about the father’s attitude to the responsibilities of parenthood (Grounds 9 and 10); and
f)The primary judge making Order 4 (Grounds 13 and 14).
The father’s application for leave to reopen his case
Ground 1 -The [primary judge] erred in failing to grant leave to the [father] to reopen his case.
Ground 2 – The [primary judge] denied the [father] natural justice in refusing to grant leave to the [father] to reopen the [father’s] case.
Ground 1A – The [primary judge] erred in taking into account in the application for leave to reopen the [father’s] case that further cross examination would be unlikely to change [the primary judge’s] views.
All of these grounds are founded upon the assertion that the father’s former counsel had failed to competently cross examine the witnesses to a degree that was acceptable and had made flawed forensic decisions.
The father submits that the primary judge should have granted him leave to reopen his case to enable him to adduce further evidence and to recall the mother, the mother’s partner, the Family Consultant and the child’s psychotherapist for further cross examination. The father also sought leave to give further evidence by re-examination of himself about the text messages that were sent on 23 February 2015. The father’s application to re-open after the evidence had closed and submissions were to start was refused by the primary judge on 7 February 2019.
In relation to adducing further evidence, the father submits he should have been permitted to provide two documents from Medicare relating to the child’s vaccinations “as at” 26 January 2019 and 5 February 2019. That submission fails simply because there was no attempt before the primary judge to tender these documents and the application in this appeal to adduce them by way of further evidence was withdrawn.
In relation to recalling witnesses, counsel for the father indicated to the primary judge that the topics in which he wished to reopen cross examination were:
a)The extra-curricular activities of the child;
b)The discussions between the parents about changing the child’s school;
c)The mother failing to consent to all the recommended vaccinations being administered to the child;
d)The mother’s negative view of conventional medicine and whether she engaged in doctor shopping;
e)The mother’s current drug use;
f)The mother having arranged counselling and medical and alternative treatments for the child without the father’s consent;
g)The mother’s behaviour in what the father describes as the “siege” incident at the child’s school in May 2018;
h)The mother’s attitude towards the father, which impacted upon her ability to parent in a cooperative manner with the father;
i)The mother’s refusal to attend mediation with the father to resolve their disagreement on choosing an appropriate school for the child;
j)The mother’s constant accusations of neglect and abuse against the father;
k)The mother’s distrust of the father’s judgment in relation to medical matters; and
l)On other unspecified matters by way of further testing of the mother’s version of events, which could have impacted on her credibility.
It seemed uncontroversial that the father’s former counsel had cross examined the mother about matters referred to in (a) through to (h). The assertion that the mother had refused to attend any mediation did not seem to be consistent with the evidence, wherein it was common ground that the parties had attended mediation with the child’s psychotherapist, Mr C, about the choice of school for the child. The mother ceased that mediation process for reasons recorded by Mr C in his report of 18 December 2018. Further, in respect of any cross examination of the Family Consultant, it seemed uncontroversial that the Family Consultant had been cross examined in respect of topics (i), (j) and (k).
In relation to Ground 1, the father did not appeal against the order made by the primary judge on 7 February 2019 dismissing the father’s oral application for leave to reopen the case. Therefore, Ground 1 fails.
That however is not to say that her Honour’s refusal to allow the father to reopen his case is of no relevance in the father’s appeal against the final orders. The gravamen of the father’s complaint in Ground 2 is that the primary judge’s dismissal of his oral application to reopen the case was a denial of procedural fairness which vitiated the final orders made by the primary judge. However, that contention risks conflating two different concepts: the actual procedural fairness of the trial and the perceived fairness of a curial decision. If the decision to refuse the father’s application to re-open the evidence was correctly made then it could not be contended it was procedurally unfair to obstruct his misguided desire to adduce more evidence, even if he perceives the result of that interlocutory decision to have been unfair.
Ground 2 purports to attack the correctness of the interlocutory decision. As indicated, the father argues that his former counsel had failed to competently cross examine the witnesses to a degree that was unacceptable and which could not be viewed as rational, tactical or informed forensic decision making.
The Full Court in OP v TP (Conduct of Counsel) (2002) 30 Fam LR 281 at [124] stated:
…from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
Counsel for the father did not take the primary judge to the transcript of any cross-examination by the father’s former counsel where he asserted the questioning was incompetent or where forensic decisions were wrong. We invited counsel for the father to identify his best examples. Counsel focused upon the father’s former counsel’s cross-examination in relation to the mother attending to vaccinations of the child; her current drug use and the event at the child’s school in May 2018.
We were unable to conclude, having read those parts of the transcript to which we were taken, that the father’s former counsel incompetently cross-examined the mother or made wrong decisions when doing so.
The primary judge delivered ex tempore reasons for judgment on 7 February 2019 as to why her Honour dismissed the father’s oral application to reopen his case, including that different counsel who represent a party may have different views on what questions need to be asked in cross-examination and counsel for a party must not act as a mere mouth piece for their client and must exercise the forensic judgments called for during a case. It was open to the primary judge to so find.
Further, the father must be able to establish on appeal not only the decisions were wrong or incompetent, but their effect was likely to have brought about a different result if they had not been made. The father does not assert what difference the further cross-examination of the witnesses (on issues already canvassed) would have made to the outcome of the case. The contention of counsel’s incompetence within Ground 2 remained, from start to finish, a bare allegation not borne out by the evidence or the submissions in the appeal.
As indicated the father also sought leave to provide further evidence by recalling himself for re-examination for the purposes of giving some clarification “as to the text message sent on [23] February 2015”. The text messages were actually exchanged between the parties on 23 and 24 February 2015. The primary judge found that they demonstrated the “intrusive, demanding and high conflict attitude” of the father and referred to corroborative evidence by the Family Consultant (see [176]–[178] of the reasons for judgment). The circumstances surrounding the text messages and the associated incident on 23 February 2015 were described by the father in his trial affidavit filed 22 January 2019 (“the father’s trial affidavit”) at paragraphs 25 to 27. The text messages were annexed to the father’s trial affidavit at A-03. The father was cross-examined about the text messages on day one of the hearing. The Family Consultant gave evidence about the text messages which was unfavourable to the father on day two of the hearing. The text messages speak for themselves. Counsel for the father did not demonstrate that any answer given in cross-examination would allow any further question to be permissibly asked in re-examination about the text messages.
There is no merit in Ground 2.
In respect to Ground 1A, the primary judge’s comment that further
cross-examination of the mother, her partner and the experts was “unlikely to change [her Honour’s] opinion in relation to the father in this case” was made after all the evidence had been given and where the primary judge had had the opportunity of observing both parties in the witness box for a period of time. The primary judge was entitled to have formed the view the further
cross-examination sought would not likely affect the primary judge’s assessment of the father’s credit and character. Ground 1A fails.
Demeanour and Credibility
Ground 3 – The [primary judge] erred in assessing the demeanour of the parties when the [father] was at a disadvantage due to the incompetence of his legal representation.
Ground 5 – The [primary judge] denied the [father] natural justice by failing to make the [father] aware the Court had determined the [father] had at times been agitated, was arrogant, and self-opinionated.
Ground 5A – The [primary judge] erred in taking into account in assessing the [father] that the [father] had at times been agitated, was arrogant and self-opinionated.
Ground 4 – The [primary judge] erred in determining that [her Honour] would prefer the [mother’s] evidence when the parties’ evidence differed.
Grounds 3, 5, 5A and 4 centre on findings made by the primary judge at [66]–[69] of her Honour’s reasons for judgment as to the credit of the parties:
66.Both the Mother and the Father gave limited evidence and were cross-examined. I therefore had the benefit of observing both parties in the witness box for a period of time and observing their demeanour in the Court throughout the proceeding.
67.When being cross-examined the Mother gave her evidence in a measured and considered manner. The Mother directly answered questions put to her. She made concessions where appropriate. The Mother impressed me as a witness.
68.Under cross-examination the Father did not answer questions in a responsive manner and he had to be reminded by the Court repeatedly to answer the questions asked by Counsel. The Father often forgot what the original question was and had to be reminded. The Father repeatedly attempted to argue with Counsel for the Mother instead of answering questions. During cross-examination the Father became hostile and agitated. The Father did not make concessions where appropriate. He presented as arrogant and self-opinionated and was deeply critical of the Mother.
69.I find the Father to have been untruthful in some of his evidence, in particular in relation to the May 2016 Speeding Incident which is referred to later in this Judgment and his inquiries into obtaining a [Country E] passport for [the child]. Where the Father’s evidence differs from that of the Mother’s evidence, I prefer the Mother’s evidence.
As to Ground 3, the father asserts firstly that the incompetence of his former counsel was such that “the [mother] was not tested in her evidence, and it was not possible to make a fair assessment of the parties’ relative credibility” and secondly, that the primary judge should not have made findings on the father’s credibility when the father was at a disadvantage due to the incompetence of his former counsel, which exacerbated the normal stress of a court hearing particularly as the father required independent legal advice.
The arguments in support of Ground 3, and indeed in support of each of these grounds, ignores that the primary judge’s assessment of the parties and their evidence was not informed solely by their presentations in the witness box. Importantly it was informed also by expert evidence and by factual evidence. For example, as to expert evidence concerning the father, the primary judge quoted at [160] from the Family Consultant’s second report, with apparent acceptance, and provided an example at [161] as follows:
160. In the Second Family Report Ms [D] reported:
[The Father] seems focussed on his rights; he is apt to expend undue energy ensuring his rights are not overtaken by [the Mother].
There is a strong sense of parental proprietorship and [the Father’s] sense of entitlement disables him from responding in an appropriate and perhaps more generous manner. His pedantic and meticulous manner is not conducive to effective communication.
He acknowledges that he is pedantic and punctilious and although he acknowledges some modification may assist their communication, he seems unable to desist when he feels his rights are being challenged.
161.The Father has prioritised his own need to pursue conflict and his own rights above his responsibilities as a parent. An example of this is the Father’s intention to inform [the child] that it was his Mother’s decision to follow the recommendation of his kindergarten instructors to repeat a year of kindergarten.
(Footnotes omitted)
As to factual evidence, and the father’s cross-examination in association with expert evidence, a useful example is the child having repeated his first year of kindergarten as referred to in her Honour’s reasons for judgment at [161] already quoted. Following that reference as an example, the primary judge recorded the following on this topic:
163. In the Second Family Report Ms [D] reported:
He was opposed to [the child] repeating kinder and although he acceded to professional advice, he felt the assessment to repeat kinder was not well considered as it was based on [the child] attending one full term. He says [the child] has missed a year and his education is now a year behind.
…
166.The Father was cross-examined on the topic of [the child] repeating a year of kindergarten. The Father agreed that he had said that:
a)He felt sorry for [the child] having to repeat kindergarten.
b) He thought that [the child] had wasted a year of his life.
c)“If [the child] ever questions this I will not hesitate to remind him that this was your sole decision”.
167.When the Father was cross-examined on this issue he presented as being obsessed with the significance of [the child’s] “lost year”.
168.Ms [D] gave evidence that the Father’s opinion that [the child] had “lost” a year and that he felt sorry for [the child] for having wasted a year, was a “misinformed view”. Ms [D] did not believe it would make any difference to [the child]. Ms [D] said that if these views were conveyed to [the child] by the Father, it would only draw [the child] into the conflict between his parents even more. Ms [D] also said the Father’s intention to tell [the child] that it was the Mother’s decision for [the child] to repeat kindergarten was unnecessary and likely to impact upon [the child’s] relationship with his Mother and also his relationship with his Father. Ms [D] said the Father’s behaviour was about saying “I’m right. She’s wrong”.
(Footnotes omitted) (Original emphasis)
As is obvious, the assessment of the father in these respects was not “relative” to the mother and no amount of cross-examination of the mother could further inform that aspect of the assessment made of the father.
Counsel for the father did not make clear the nature of the questions which would be further put to the mother which would impugn her credit. Nor did the father identify with any specificity the disadvantage which he said he was under. His claim that he was under further stress exacerbated by the court hearing is unsupported by any evidence.
For reasons already discussed the father has not established that he was at some type of disadvantage “due to the incompetence of his legal representation”.
Ground 3 fails.
In relation to Ground 5, an unusual feature of this case is that the counsel who represented the father whilst he was giving evidence in the witness box was not the same counsel who made final submissions on behalf of the father. Ordinarily a party’s conduct in the witness box would be seen by his legal representatives who would be aware of how their client presented in the witness box and it would be exceptional for a primary judge, as a matter of fairness, to need to draw attention to those observations (see SCVG & KLD [2011] FamCAFC 100).
In support of Ground 5 the father submits that the primary judge should have made his new counsel aware that her Honour would take into consideration that the father had been agitated, was arrogant and self-opinionated in making her decision and that the primary judge denied him natural justice, by failing to make his new counsel aware that her Honour had formed the view about the father’s personal characteristics that would be taken into account in making an assessment as to his credibility. The father asserts he was denied the opportunity of being able to give evidence to explain his demeanour.
It is fundamental to our notions of justice to afford a hearing to a party by ordinarily providing them with an opportunity to present material information and submissions before a decision is made (see Allesch v Maunz (2000) 203 CLR 172 at 184–185; Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
The father refers to a statement per McHugh J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [101]:
One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.
(Footnote omitted)
However, the Family Consultant’s second report provided in advance of the trial, as referred to at [160] of the reasons for judgment already quoted, squarely raised the father’s characteristics of focusing upon, and insisting upon, his “rights” with respect to parenting matters; his “strong sense of parental proprietorship” and his “sense of entitlement”. That these characteristics of the father were identified by the Family Consultant as relevant, left it as no surprise that the primary judge took the approach that this aspect “necessarily inheres in the issues to be decided”. The father was well and truly on notice, in advance of the trial, via the mother’s affidavit evidence and the stated opinions of the Family Consultant as recorded in her second family report that he faced the real prospect of the primary judge making the findings her Honour made.
In the primary judge’s ex tempore reasons for judgment, when dismissing the father’s application to reopen his case, her Honour said that she had formed the view that the father was controlling and lacked insight. Immediately after that ex tempore judgment was delivered, the current counsel for the father (who first appeared on 7 February 2019 to make the application to reopen) inquired of her Honour:
[COUNSEL FOR THE FATHER]: Your Honour, you stated that you’ve formed a view of my client. Is that a tentative view or is that a concluded view?
HER HONOUR: I’ve heard all the evidence at this point in time, but I’m hearing your final submissions now.
…
HER HONOUR: As I said, I have been upfront about that’s my view. How that plays out in terms of final orders, it comes in terms of your submissions. But the evidence is closed at this point in time. I’m entitled to have a view. How that view plays out in terms of orders is up to you to persuade me with your submissions.
[COUNSEL FOR THE FATHER]: Okay.
(Transcript 7 February 2019, p.175 line 44 to p.176 line 24)
Counsel for the father did not seek to recall the father in respect of the view that the primary judge had formed that he was controlling and lacked insight.
At the request of counsel for the father, counsel for the mother gave her closing address to the court first. The question of the father’s credibility was raised squarely by the mother’s counsel in the “Outline of Closing Submissions on Behalf of the Applicant Mother” dated 31 January 2019 and in her oral submissions (Transcript 7 February 2019, p.184 lines 25–46). The father was on notice and given an opportunity to be heard in relation to the views the primary judge had formed about the father. Regardless, it is doubtful counsel could have made any useful submission to benignly explain the father’s behaviour on display during the trial before counsel was retained to take over the father’s representation. If counsel did not witness the father’s behaviour he was hardly in a position, even with the benefit of instructions from the father, to contradict the primary judge’s interpretation or characterisation of it.
There is no merit in Ground 5.
As to Ground 5A, the father submits that “the personal opinion of the [primary judge] on the personal characteristics of the [father] were irrelevant, and prejudicial”, and more specifically that the finding by the primary judge with the father was arrogant and self-opinionated were irrelevant to any consideration of the credibility of the father and more generally, to s 60CC of the Family Law Act 1975 (Cth) (“the Act”) considerations.
These submissions are without merit. Fundamental to each of the mandatory considerations expressed in s 60CC(2) and (3) of the Act is consideration of any personal characteristics of each parent which will, or may, impact upon those statutory considerations. Not only were the primary judge’s subject findings necessary, they were fundamental to the task of applying the statutory considerations in determining the child’s best interests and the parenting orders to be made to meet them.
The assessment of demeanour is a relevant component in assessing the credibility of a witness. It is self-evident that the primary judge did not rely upon demeanour alone to assess the father’s credibility. Apart from the Family Consultant’s assessment, the primary judge also relied upon findings that the father had been untruthful in evidence that he had given in relation to the May 2016 speeding incident and in relation to his inquiries into obtaining a Country E passport for the child. In relation to the May 2016 speeding incident, the primary judge sets out in detail at [171]–[175] of the reasons for judgment as to why it was that her Honour found that the father had been untruthful in relation to the May 2016 speeding incident during which he drove a motor vehicle in excess of 150kms per hour at a time when he had care of the child. Her Honour found that the father had lied about the incident to the police, then pleaded guilty, then had been untruthful about the incident when giving evidence in these proceedings. The father did not inform the mother about the incident nor that he had his licence suspended.
The father submits that a rejection of one part of his evidence should not necessarily mean that all of his evidence should be said to be untruthful (see Louth v Diprose (1992) 175 CLR 621 at 625 (per Mason CJ) and at 634 (per Deane J)). Whilst that is undoubtedly correct, in this case, the multiple contradictions in the father’s answers to questions about this topic provide a solid basis for the primary judge taking it into account when considering the father’s credibility more generally. In addition, the primary judge did not rely upon a single piece of evidence but rather that totality of the evidence and the impressions that she formed of the father to reach the general conclusion about his credibility.
In respect of the general assertion that findings about personal characteristics of a parent are not relevant to a consideration of matters referred to in s 60CC of the Act, that is a plainly unsustainable proposition. For example, s 60CC(3)(i) of the Act requires the court to consider “the attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents”. Here, a central question for determination was in whose favour should an order for sole parental responsibility for decisions about major long-term issues in respect of the child’s education and health be made, in circumstances where information in relation to that decision making was to be communicated to the other parent. The question of the father’s personality was relevant to that question.
We accept that in parenting proceedings, an adverse credit finding against a parent should be made only when it is necessary to determine real issues joined between the parties and should be soundly based. There should be an appreciation that such findings may further fuel long-standing conflicts rather than quell them (see Adamson & Adamson (2014) FLC 93-622 at [89]–[90]). That is not to say that a primary judge should shy away from making those findings if it is necessary to do so. It was necessary to do so in this case given the central issues falling for determination and the evidence, including the expert evidence to which we have referred, relevant to those issues.
There is no merit in Ground 5A.
In relation to Ground 4 the father acknowledged the entitlement of the primary judge to make findings on credibility of the parties and the position of advantage a trial judge has having seen witnesses, however the father points to a statement per Deane and Dawson JJ in Devries v Australian National Railway Commission (1993) 177 CLR 472 at 480:
Judges are increasingly aware of their own limitations and of the fact that, in a court room, the habitual liar may be confident and plausible and the conscientious truthful witness may be hesitant and uncertain.
This somewhat overlooks the statement by their Honours which almost immediately follows:
However, this does not deny that in many cases a trial judge's observation of the demeanour of witnesses as they give their evidence legitimately plays a significant and even decisive part in assessing credibility and in making factual findings…
In the current case, the primary judge was in a position to make a finding about the general credibility of the parties based upon a consideration of all of the evidence and her Honour’s own observations and in the context of the real issues joined in this case, it was appropriate that her Honour do so.
There is no merit in Ground 4.
Parental Responsibility
Ground 6 – The [primary judge] erred in failing to make a determination as to whether the [mother] would make the correct decisions in relation to the child’s school and medical treatment in relation to the allocation of parental responsibility for the child
Under this ground the father firstly argues that the primary judge should have determined whether or not the mother would make proper decisions as to the future education and medical treatment of the child in determining whether the mother should have sole parental responsibility for education and medical treatment. There was no obligation on the primary judge to determine whether the mother would make “correct decisions” in relation to the child’s school and medical treatment nor determine which school the child should attend. Rather, it was incumbent upon the primary judge to weigh all relevant s 60CC considerations and make a parenting order allocating parental responsibility that was in the best interests of the child.
The father’s second submission is “that the [primary judge] should have made a decision about which school the child should have attended in determining whether the [mother] should have sole [parental] responsibility for the child”. Each of the parties sought that they have sole parental responsibility for making decisions about the child’s schooling. Whilst it was clear the mother did not want the child to change schools and the father did, neither party made an application for an order about which school the child should attend. Nor had the father argued before the primary judge that the allocation of parental responsibility for education be founded on a decision about which school the child should attend. There was no evidence put before the primary judge as to the merits of alternate schools. A party is bound by the conduct of their case (Metwally v University of Wollongong (1985) 60 ALR 68).
There is no merit in Ground 6.
Ground 11 – The [primary judge] failed to take into account in making the orders for sole parental responsibility in favour of the [mother] for education and medical treatment the following:
(a) The [mother] had created a siege at the child’s school for 1.5 hours;
(b) The [mother] had refused to engage in mediation with the [father];
(c) The [mother] believed the [father] posed a risk to the child.
In the father’s written Summary of Argument, the father simply records that “the [primary judge] failed to take the abovementioned factors into consideration in her [Honour’s] decision, which were relevant to determining the best interests of the child”. That submission was unsupported by any further written argument.
During oral submissions, counsel for the father sought to demonstrate the primary judge had failed to take into account what he described as a serious incident caused by the mother at the child’s school in May 2018. On that day both the mother and father turned up at the school to pick up the child. The court orders provided for the father to do so. However, the mother says prior to this day she had developed concerns about the father’s drug use and on that day she thought that there had been an agreement that she could temporarily have the child with her whilst those concerns were being addressed by the father’s solicitors. The child was kept at the school until the matter was resolved. The mother called the police and about six officers came to the school. The police spoke to the father and he showed them a copy of the court orders and his drug testing results, which he agreed he had not provided to the mother, but provided to his solicitor the following day. The police determined the child should leave with the father.
The incident is more fully described in records made by the school about the event exhibited to the father’s affidavit filed 22 January 2019 (see Exhibit A-17).
In the father’s affidavit filed 22 January 2019 at paragraph 97(j), the father describes the mother’s demeanour during the incident as “extremely agitated”, “acting hysterical [sic], screaming and shouting, distrbuing [sic] the school peace”.
During the father’s cross examination the following exchange took place:
[COUNSEL FOR THE MOTHER]: The police have never described her behaviour as agitated or hysterical, have they?
[THE FATHER]: School has done that. You can look at the school notes.
(Transcript 29 January 2019, p.43 lines 11–12)
The school notes do not describe the mother’s demeanour during this incident in the way described by the father.
The ground of appeal refers to a “siege” at the child’s school in May 2018. Nobody, during the hearing before the primary judge, referred to the incident in May 2018 as a “siege” and there is objectively no evidence to describe what happened at the school on the day as a “siege”.
During final submissions the primary judge noted that she had heard the mother’s explanation as to why she called the police.
In cross-examination the mother gave the following explanation:
I was concerned. I was frightened. We had, as far as I could understand it, an agreement in place via our legal counsel at the time that he [the father] would not attend the school and when I saw him there I was frightened.
(Transcript 29 January 2019, p.24 lines 27–29).
The primary judge does not refer to the incident in May 2018 in her reasons for judgment, however the primary judge was not required to mention every fact or argument relied upon by the losing party as relevant to an issue (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Counsel for the father did not address Grounds 11(b) and (c) in oral argument and it is unclear what the basis of the complaint is. The parties did attend upon Mr C for mediation on a number of occasions.
There is no merit in Ground 11.
Ground 12 – The [primary judge] erred in ordering [that] the [mother] should have sole parental responsibility for education and medical treatment
The father argued in his Summary of Argument that the primary judge erred in finding that the presumption as to shared parental responsibility had been rebutted “…as there had to be explicit and cogent reasons for rebutting the presumption” (see Dundas & Blake (2013) FLC 93-552 at [61]).
That submission is curious for two reasons. Firstly, counsel for the father submitted to the primary judge that the presumption of equal shared parental responsibility had been rebutted as the father asserted that the mother would not allow the father to engage in any decision making, had been uncooperative and allegedly had on no occasion been willing to engage with the father in mediation (see Transcript 7 February 2019, p.197 line 45 to p.198 line 6).
Secondly, in this case, each parent sought an order in their favour for sole parental responsibility for medical and educational issues (and in respect of the father, international travel). Neither party sought an order for equal shared parental responsibility in relation to major long-term medical and educational issues. In oral evidence, the father said that shared parenting was “absolutely dysfunctional” (Transcript 30 January 2019, p.15 lines 37–39).
When the primary judge made the decision about parental responsibility, her Honour specifically made reference to findings made in relation to ss 60CC(2)(b), 60CC(3)(a), 60CC(3)(c), 60CC(3)(d) and 60CC(3)(i) of the Act.
The allocation of parental responsibility by the primary judge was supported by the evidence and her Honour’s conclusions including:
·The ongoing conflict between the parents posed a risk to the child (at [88]);
·The child has displayed several negative emotions in situations where his father has adopted some medical remedies (at [91]) and that he is apprehensive about certain things his father has put forward (when the father makes suggestions about education and medicine) (at [133]);
·The significant dispute between the parents in relation to the child’s education (at [106]–[107]);
·The dispute between the parties in relation to the child’s medical treatment (at [112]–[113]);
·The child has not shown any negative consequences in his mother’s care with respect to her decisions with education and medical intervention (at [138]); and
·The father has prioritised his own needs to pursue conflict and his own rights above his responsibilities as a parent (at [161]).
It was well open to the primary judge to find, as her Honour did, that having regard to all considerations relevant to the best interests of the child, the presumption of equal shared parental responsibility was rebutted. Further, it was open to the primary judge to conclude that it was in the best interests of the child to make an order for sole parental responsibility in relation to education and health as sought by the mother.
There is no merit in Ground 12.
Vaccinations
Ground 7 – The [primary judge] erred in drawing Jonesv Dunkel inference against the [father] in failing to call the child’s doctor
Ground 8 – The [primary judge] erred in holding the child had completed his vaccination requirements
These grounds arise out of a conflict between the parties as to whether the child’s vaccination requirements have been met.
The consent orders made on 10 July 2013 provided that each of the parties were to comply with the recommendations of the child’s treating practitioner, Dr B, as to the regime for the child’s vaccinations.
The mother’s evidence was that she had complied with the program that Dr B had administered. She produced a medical certificate from Dr B dated 28 June 2018 which stated, “With this delayed schedule this completes [the child’s] vaccination requirements for the present” (Exhibit A6).
The father relied upon Exhibit R1 which was a Medicare Immunisation History Statement dated 28 April 2018 to assert the vaccinations were not up to date. Prior to the tender of the document, the primary judge indicated that she was perplexed as to what this document meant (see Transcript 29 January 2019, p.16 line 22). To the extent that the mother answered any question in relation to what that medical record meant, that evidence would only be given weight as lay opinion.
At [119] of the reasons for judgment, the primary judge concludes:
The Father has failed to demonstrate that the Mother has not complied with the 2013 Orders in relation to vaccination of [the child]. I place little weight upon the Medicare Immunisation History Statement, dated 28 April 2018 which was produced by the Father in circumstances where the Father has failed to produce evidence from Dr [B]. By failing to call this evidence I infer that the Father has not produced expert evidence that [the child’s] vaccination needs are unmet because there is no such evidence. I find that the Father has persisted with this issue because of his disagreement with Dr [B] professional opinion in relation to appropriate immunisations for [the child].
(Footnote omitted)
As to Ground 7, it is the father’s contention that the primary judge impermissibly applied the “rule” in Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) at 312 against him. The father relies upon the fact that in Jones v Dunkel, the High Court of Australia states that the absence of a witness cannot be used to make up any deficiency in the evidence. But in this case, the primary judge does not base her Honour’s conclusion solely on the absence of oral evidence from Dr B. The mother had tendered a medical certificate from Dr B stating the opposite conclusion from that asserted by the father.
Further, the father gave oral evidence that he has had a one hour discussion with Dr B concerning the child’s vaccinations and was not satisfied with his recommendations. The father however denied that there was any conflict between he and Dr B. We reject the submission by counsel for the father that “it would not have been natural for [the father] to call Dr [B]”. The primary judge’s comments are confined to the father not having expert evidence from Dr B or any other expert as to the meaning of the Medicare Immunisation History Statement.
It was open to the primary judge to conclude that the father had failed to demonstrate by expert evidence, that the mother had not complied with the 2013 orders in relation to the vaccination of the child because he was unable to procure any such evidence.
There is no merit in Ground 7.
Ground 8 asserts that the primary judge made a material error of fact in finding that “the child had completed his vaccination requirements” (House v The King (1936) 55 CLR 499). As is evident from the opening words of [119] of her Honour’s reasons, the primary judge made no such finding but rather “[t]he father has failed to demonstrate that the mother has not complied with the 2013 Orders in relation to vaccination of [the child]…”.
Ground 8 fails.
Attitude to the responsibilities of parenthood
Ground 9 – The [primary judge] erred in holding the [father] pursued his own parental rights above his responsibilities as a parent in relation to the engagement of a psychologist for the child in 2014
At [160] of the reasons for judgment, the primary judge records the Family Consultant’s opinion:
[The Father] seems focussed on his rights; he is apt to expend undue energy ensuring his rights are not overtaken by [the Mother].
(Footnote omitted) (As per the original)
As already noted, one example the primary judge discusses at [162]–[168] is the father’s complaint about the mother following advice for the child to repeat kindergarten. He thought the child had wasted a year of his life and “[i]f [the child] ever questions this I [the father] will not hesitate to remind him that this was your [the mother’s] sole decision” (at [166(c)].
Another example, which is the focus of this ground, relates to the child seeing a psychotherapist in 2014. The primary judge states at [169]–[170]:
169.Another example of the Father pursuing his own parental rights above his responsibilities as a parent is in relation to the engagement of a psychologist for [the child]. The Mother deposed that in mid to late 2014 [the child] began wetting his bed at night and preventing himself from evacuating his bowels when he knew he needed to do so. The Mother became concerned and asked the Father to agree to the engagement of a psychologist for [the child]. The Father refused. The Mother consulted [the child’s] general practitioner Dr [B] and obtained a referral to psychologist Ms [F]. [The child] attended upon Ms [F] approximately six times and was diagnosed with generalised anxiety. When the Father became aware of [the child’s] counselling he immediately unilaterally terminated Ms [F’s] engagement.
170. The Mother deposed:
In May 2015, [the child] told me he had begun seeing a new counsellor Mr [C]. I had received no prior notice of Mr [C’s] engagement from [the Father]. I spoke with Mr [C], and while I was upset that [the Father] had unilaterally ceased [the child’s] prior counselling arrangements, Mr [C] appeared genuinely concerned for [the child] and I was anxious to ensure that [the child] had appropriate support. I continued to facilitate counselling for [the child] with Mr [C] and have engaged over the last three years with him in good faith in our mutual pursuit of [the child’s] best interests.
(Footnotes omitted) (Original emphasis)
Whilst the father points to the 2013 order for equal shared parental responsibility and the mother’s engagement of Ms F, based on the findings made and taken with other unchallenged findings relating to the father’s behaviours and attitudes, it was open to the primary judge to conclude that the father’s unilateral termination of Ms F and the engagement of an alternate psychologist for the child in 2014 was an example of the father “pursuing his own parental rights above his responsibilities as a parent”.
There is no merit in Ground 9.
Ground 10 – The [primary judge] erred in holding the [father] demonstrated an intrusive, demanding and high conflict attitude to the [mother] in relation to parenting the child
The findings by the primary judge which are the subject of this ground are [176]–[178] of the reasons for judgment are in the following terms:
176.The Father has demonstrated an intrusive, demanding and high conflict attitude towards parenting [the child]. This is demonstrated in an exchange of texts between himself and the Mother on 23 and 24 February 2015 when the Father was concerned that [the child] had a fever. The Father has exhibited these to texts to his own Trial Affidavit. [The Family Consultant] described the Father’s first text (at 5.59 pm) as being:
[…] just so long and so intrusive…I think it’s over the top, unnecessary, and shows no trust in the mother whatsoever.
177.[The Family Consultant] described the Mother’s response (at 6.49 pm) as “Please calm down”. In relation to the Father’s text (at 7:00 pm) Ms D said:
Look, I see it as just a total lack of trust - total lack of trust - and no sense that [the Mother] as a parent […] has any capacity to make, you know an assessment of her son’s health
178.On 23 February 2015 the Father attended at the Mother’s home after being requested not to do so by the Mother and the Mother called the Police. The Father insisted that a doctor attend at the Mother’s residence on the evening of 23 February 2015 and the Father arranged for a doctor to attend. The doctor from the [After Hours] Doctor Service provided a report that demonstrated that [the child] did not have a temperature at the time the doctor attended. The Mother has deposed that the Father again attended at her home on 24 February 2015 and became argumentative and abusive and yelled at the Mother in the presence of [the child].
(Footnotes omitted) (Original emphasis)
The father submits that the text messages did not give rise to a proper basis for a finding that the applicant was intrusive, demanding and had a high conflict attitude towards parenting the child. Apart from that assertion, this ground is unsupported by any proper argument. A complete reading of the text messages also supports a conclusion that the father had demonstrated an intrusive, demanding and high conflict attitude. The attendance by the father at the mother’s home on 24 February 2015 led to the police obtaining an interim protection order against the father. The factual findings made by the primary judge at [175]–[178] upon which the ultimate conclusion was reached are not challenged.
There is no merit in Ground 10.
The father’s complaints about Order 4
Ground 13 – The [primary judge] erred in making the following order:
The Father do all acts and things and sign all documents required of him to give effect to the advice provided by the mental and physical health practitioners engaged by the Mother to assess and/ or treat [the child] (practitioners), including but not limited to:
(a) Facilitating [the child’s] attendance at appointments as directed by the practitioners
(b) Administering to [the child] any medications prescribed or advised to be taken by the practitioners; and
(c) Refraining from acting in contradiction to the advice or treatment plan provided by the practitioners (the restraint order)
The father complains about Order 4 made 11 September 2019 which is in the terms set out in this ground of appeal. At [218] of the reasons for judgment, the primary judge finds it is in the best interests of the child to make the set of parental responsibility orders sought by the mother which includes Order 4.
The father asserts that Order 4 of the final orders is an injunction. That is not necessarily so. Order 4 could be made relying upon the power to make a parenting order (s 65D(1) of the Act) as defined by s 64B(2)(i) of the Act (“…any other aspect of parental responsibility for a child”). To the extent that it is a parenting order it is clear there would be no error in the primary judge considering the best interests of the child which would be the paramount consideration (s 60CA of the Act).
However, even if Order 4 was considered to be an injunction pursuant to s 68B(1)(a) of the Act and was not strictly a parenting order, it intimately concerned the welfare of the child and the best interests of the child is needed to be given careful consideration. Order 4 is clearly and consistently made as an adjunct to or to support the order that the mother have sole parental responsibility in respect of major long-term issues relating to the child’s education and health (see Flanagan and Handcock (2001) FLC 93-074 at [18]; CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”)).
The father specifically complains that Order 4(c), which restrains him “from acting in contradiction to the advice or treatment plan provided by the [child’s mental and physical health] practitioners”, would place him in an invidious position should there be an emergency in relation to the child’s health including the child becoming suddenly unwell whilst in his care. These submissions are made without substance in circumstances where:
a)There is unlikely to be advice or a treatment plan which was relevant to a particular medical emergency;
b)The father has an immediate ability to contact the mother electronically; and
c)It is not a sanctionable breach of an order if action needs to be taken to ensure the safety of a child (s 70NAE(1) and (4) of the Act).
There is no merit in Ground 13.
Ground 14 – The [primary judge] did not provide proper reasons for the restraint order
Whether reasons are adequate will turn upon the circumstances of the case. Reasons are inadequate if it is not possible to ascertain the reasons upon which the decision is based or if justice is not seen to be done (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267).
As indicated, in reaching her Honour’s conclusion in respect of the orders which are the subject of appeal, the primary judge referred back to particular s 60CC(2) and (3) considerations. The primary judge has more than adequately explained why she made the order that she did and her Honour’s reasons do not deny the opportunity to detect error.
There is no merit in Ground 14.
Application in an Appeal filed 20 April 2020
On 20 April 2020 the father filed an Application in an Appeal seeking leave to adduce further evidence. That application was not pressed and shall be dismissed.
Application in an Appeal filed 13 May 2020
The hearing of this appeal took place by electronic means on 6 May 2020 using Microsoft Teams. The Full Court of the Family Court of Australia has been using this technology in hearing matters (as have all Federal Courts) since shortly after the beginning of the COVID-19 pandemic in Australia.
Subsequent to the completion of the oral hearing of this appeal on 6 May 2020, the father filed an Application in an Appeal on 13 May 2020 seeking leave to reopen the hearing of the appeal “due to the appeal being impacted by technical difficulties from being heard remotely”. The father asserts that he was denied procedural fairness and a fair hearing as a result.
The father’s Outline of Submissions filed 29 May 2020 in support of the application to reopen states, at paragraph 3:
There was a failure of technology during the hearing on 4 May 2020 that impacted upon the presentation of the [the father’s] case before the Full Court of the Family Court. The failure of technology prevented the [father’s] counsel from making full submissions on behalf of the [father]. He was not able to see the judges at all, and he [counsel for the father] could not access the court book properly. His ability to respond meaningfully with the judges was severely curtailed, due to events beyond the [father’s] control. The failure of technology could not have been foreseen, as it worked at the test on 28 April 2020.
(As per the original)
No less than four specific grounds of appeal (Grounds 1, 1A, 2, and 3) are directed to the alleged incompetence of the father’s former counsel at trial as to alleged failings of his former counsel to competently cross-examine witnesses.
The fact that counsel for the father who appeared on the appeal was well aware of the need to identify specific examples to mount arguments in support of such grounds is evidenced by the father’s Summary of Argument filed 17 April 2020, settled by that counsel. Paragraph 4 of that document identifies no less than 12 topics, each with specific references to the trial transcript relied upon. That detail was prepared for the Summary of Argument filed on 17 April 2020 well in advance of the appeal hearing on 6 May 2020.
It cannot be sensibly suggested, given the content of the subject grounds and the detail contained in the Summary of Argument filed 17 April 2020, and given also the serious nature of the criticisms levelled against former counsel for the father at trial, that it would come as any surprise that, on the hearing of the appeal, the Court might wish to test the arguments mounted, and the examples relied upon in support of these arguments, as occurred. Preparation of that aspect was inherent to preparation of the argument on appeal. Moreover, the detailed transcript references provided in the Summary of Argument filed 17 April 2020 directed the Court to the examples being relied upon to support the father’s contentions.
We are satisfied that counsel for the father was indeed prepared to mount the argument and to address any testing from the Court during oral argument as to the examples relied upon as identified in the father’s Summary of Argument filed 17 April 2020. Whilst there were numerous pauses taken by counsel for the father in the course of his oral argument whilst he apparently sought to access information from his own computer, on each occasion, counsel for the father was afforded such time as he apparently needed or sought in responding to any questions raised by the Court. At no point did counsel for the father suggest that any technical difficulties he was experiencing with his own computer prevented or curtailed him from advancing such submissions as he sought to advance over the course of the approximate 1 hour and 20 minute period that his oral argument occupied.
To the extent that the father directs the same complaints to the oral argument of other grounds of appeal precisely the same observations as made with respect to these grounds apply. That is, in summary, nothing which occurred in the course of oral argument of the appeal suggests that the father was not afforded a fair opportunity to present his case and a fair hearing, and that such opportunity was not taken. Nor was there any suggestion by counsel that he was unable to advance any relevant submission.
In relation to whether counsel for the father could see us, apart from the assertion in the father’s submissions, which were signed by counsel for the father, there is no evidence that that was so nor was there any indication during the hearing of the appeal that that was so. In any event, no relevant consequence of any inability to observe the Bench is identified. This Court often hears appeals and applications in appeals via telephone. We fail to see how the ability or inability to observe the Bench has any impact at all on receiving a fair hearing.
This Court’s experience was that the Microsoft Teams technology worked faultlessly during the hearing of the appeal. We could see and hear both parties’ counsel. There was comprehensive and socratic dialogue with counsel for the father. At no time did counsel for the father complain that he could not see the Court nor did counsel for the father apply for an adjournment, nor request the matter be stood down to attend to any technical difficulty from counsel for the father’s end. There is no suggestion that counsel for the father could not hear the Bench at all times. We do not accept that there was any denial of procedural fairness arising from counsel for the father not being able to see the Bench.
In relation to the use by counsel for the father of the electronic appeal book and the electronic transcript, the Full Court of the Family Court of Australia has been conducting hearings of appeals using electronic documents for a substantial period of time commencing well prior to the current pandemic.
On 13 February 2020 procedural directions were made requiring the father to prepare an electronic appeal book and obtain electronic transcript. Amongst others, Order 2 provided:
2.That the [father] prepare the appeal book in electronic format. The document shall:
a.be in portable document format (pdf);
b.be capable of being searchable for specified text (optical character recognition - ocr);
c.have an index which is paginated to reflect the electronic document;
d.have a paginated index;
e.have each entry in the index bookmarked; and
f.be set so that when opened:
i.it shall display at full page width; and
ii.the bookmarks menu shall be displayed
(As per the original)
The consolidated electronic transcript was made available on 4 March 2020 and the electronic appeal book on 22 April 2020. The appeal book was 886 pages long but was paginated, bookmarked and had a comprehensive index.
Counsel for the father had the electronic appeal book well ahead of time and in fact the father was responsible for the preparation of the electronic appeal book and electronic transcript. There was ample opportunity for him to attend ahead of time to any discomfort he had in the use of the electronic appeal book or electronic transcript by printing out a hard copy of the whole or parts of the appeal book or transcript.
While counsel for the father on occasion took time to find a particular reference in the electronic appeal book, there was no indication that it was the use of technology preventing him from doing so. On occasions, the Court and counsel for the father assisted by referring to the location of part of the appeal book or transcript to which he sought to refer.
At no time during the hearing did counsel for the father indicate that either his access to the electronic appeal book or the electronic transcript, each of which are a single PDF document, easily searched by page number or key words, had failed him altogether.
We are unable to see how any delay in the father being able to cite a particular reference to a page in an appeal book or a transcript had something to do with technology as opposed to how counsel for the father had prepared for the appeal. Procedural fairness is not denied to a party if the party or their lawyer does not use the opportunities that have been provided to participate fully in a hearing.
In our judgment, by this application under the guise of asserted “technology issues” the father now seeks to reargue the same subject matter in a varied form, now with the benefit of reflection upon the exchanges between the Court and his counsel during the course of the oral arguments of the appeal. To permit that to occur would be grossly unfair to the mother.
The Application in an Appeal filed 13 May 2020 shall be dismissed.
Application in an appeal filed 12 August 2020
Subsequent to the settling of the orders and reasons for judgment but before it has been delivered, the father filed another Application in an Appeal seeking leave to adduce further evidence which was contained in an affidavit sworn by the father on 12 August 2020, annexing three documents and containing submissions relevant to those documents. Although the father did not say so in either the Application in an Appeal or supporting affidavit, the further evidence was obviously directed towards Grounds 6, 7, 8 and 12, which deal with the allocation of sole parental responsibility to the mother, embracing decisions about the child’s medical treatment.
The first annexure to the father’s affidavit of 12 August 2020 (“A1”) is an undated screenshot from the father’s Centrelink online account which includes a note stating “[y]our payments will be affected as your child does not meet immunisation requirements. Please contact your vaccination provider or general practitioner to update your child’s immunisation record”. This note is not definitive evidence that the mother has failed to vaccinate the child as claimed by the father, and is similar to the document the father has previously sought to rely upon which is discussed at [82] above.
The second annexure (“A 2”) is a “Report Regarding Vaccinations” dated 18 June 2020 written by Mr C, the child’s treating psychotherapist since March 2015. It was “prepared at the instruction of the [the father]”. The child, now 10, has been seeing Mr C each fortnight for over five years. The child is taken to appointments with Mr C by each parent alternatively. Mr C gave evidence at the hearing and was cross-examined. This report is based upon “Parent Feedback Sessions with [the father]” and “[c]ommunication with Dr [B] [the child’s general practitioner]” and opines that the mother believes in a conservative approach to vaccinations and that the mother “noted” that “she sought help from Dr [B] after intensive research and advice from trusted sources to confirm a practitioner with adequate experience who also took a conservative stance towards vaccinations”. Pursuant to Court orders, Dr B has been supervising the child’s vaccinations since 2013. Dr B has administered vaccinations that are necessary for the child’s adequate medical care, albeit they may not be all those vaccinations recommended by Medicare guidelines. The report concludes that the child’s general practitioner concurs with the mother’s conservative approach to vaccinations “while also maintaining sound medical advice”.
In summary, the further evidence sought to be admitted seeks to revive and perpetuate the centrally disputed issue agitated at trial by the father, and resolved by the reasons for judgment, concerning the child’s immunisations. Receipt of this evidence would axiomatically require a new trial for the mother to test the evidence and for her to have the opportunity to respond to it. This is a powerful factor against this Court exercising discretion to receive it on appeal (see CDJ v VAJ).
The third annexure (“A 3”) also prepared at the instructions of the father, is a report from Mr C dated 10 August 2020 which chronicles the continued significant underlying conflict between the parents and that the child can “sense the tension”. It describes how the primary judge’s Orders have been conveyed to the child and how certain fears that the child had as a result, have been resolved. Mr C records the fact that the father took the child for a COVID-19 test without telling the mother and did not personally convey the negative test result to her but rather had the child do so. Mr C records a request from the child to his parents to come to an agreement about his medical treatment and schooling.
Section 93A(2) of the Act provides for a discretion in an appeal for the Court to receive further evidence upon questions of fact. The nature of the discretion and the manner of its exercise is comprehensively discussed in CDJv VAJ. In our judgment, on the face of the father’s application and his affidavit evidence in support, the criteria for admission of further evidence on appeal is not met. Taken at its highest, we are of the view that the further evidence, if accepted, would not demonstrate that the orders under appeal are erroneous. We are not satisfied that had this evidence been available it would have produced a different result. The third annexure (“A 3”), if anything, underscores the correctness of the primary judge’s decision to place parental responsibility in relation to decision making in respect of medical and schooling matters in the hands of one of the parents; and that it is in the child’s interests to finalise this litigation. It is not in the interests of justice to admit this further evidence (see CDJ v VAJ).
Rules 1.10 and 10.12(d) of the Family Law Rules 2004 (Cth), allow this Court to make an order on its own initiative in circumstances where an application has no reasonable likelihood of success. The application for leave to adduce further evidence shall be summarily dismissed.
Conclusion in respect of the appeal
As no ground of appeal has been successful, the appeal shall be dismissed.
Costs of the appeal and the application in an appeal filed 13 may 2020
The mother sought an order that the father pay her costs on a party/party basis in the sum of $17,609.36. The father did not oppose an order for costs nor dispute the itemisation of the quantum claimed. The father sought that an order for less than the full amount claimed be made because of the father’s current financial circumstances. The father has been wholly unsuccessful in the appeal and it is just to make an order for costs in the amount claimed. The father shall have three months to pay.
The mother has also applied for costs of the application in an appeal filed 13 May 2020 in the sum of $2,500. The father has been wholly unsuccessful in this application. It is just that a costs order be made in the mother’s favour as sought. The father will also have three months’ to pay this amount.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Kent, Watts & Austin JJ) delivered on 27 August 2020.
Associate:
Date: 27 August 2020
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