Kovacs and Graham (No 2)
[2017] FamCAFC 249
•24 November 2017
FAMILY COURT OF AUSTRALIA
| KOVACS & GRAHAM (NO. 2) | [2017] FamCAFC 249 |
| FAMILY LAW – APPEAL – PARENTING – Final orders – Whether the primary judge failed to take relevant matters into account – Challenges as to the weight given to the evidence – Procedural fairness – Bias – No appealable error established – Appeals dismissed. FAMILY LAW – APPEAL – PARENTING – Interim orders – Where leave to appeal is required against certain interim orders – Where the appeals lack utility and are vexatious and oppressive – Leave to appeal refused. |
| Family Law Act 1975 (Cth) s 102QB Family Law Rules 2004 (Cth) r 17.02(1)(a) |
| Allesch v Maunz (2000) 203 CLR 172 Barbey & Tuttle (2013) FLC 93-534 Buljubasic v Buljubasic (1999) FLC 92-865 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Graham & Kovacs (No 4) [2015] FamCA 1073 Graham & Kovacs (No 5) [2015] FamCA 1115 Graham & Kovacs [2016] FamCA 281 Gronow & Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Kovacs & Graham [2015] FamCAFC 98 Kovacs & Graham [2017] FamCAFC 173 McMahon and McMahon (1976) FLC 90-128 Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 Talbot & Talbot (2015) FLC 93-660 Taylor v Taylor (1979) 143 CLR 1 Vakauta v Kelly (1989) 167 CLR 568 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 |
| APPELLANT: | Mr Kovacs |
| RESPONDENT: | Ms Graham |
| INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
| FILE NUMBER: | CSC | 762 | of | 2010 |
| APPEAL NUMBERS: | NA | 62 | of | 2015 |
| NA | 87 | of | 2015 | |
| NA | 4 | of | 2016 | |
| NA | 14 | of | 2016 | |
| NA | 15 | of | 2016 |
| DATE DELIVERED: | 24 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Aldridge & Forrest JJ |
| HEARING DATE: | 23 August 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT ORDERS MADE: | 13 August 2015 29 October 2015 |
| LOWER COURT MNC: | [2015] FamCA 900 [2015] FamCA 1073 [2015] FamCA 1115 [2016] FamCA 281 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McArdle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Susan Gray |
Orders
Appeals NA 62 of 2015, NA 87 of 2015 and NA 4 of 2016 be dismissed.
The applications for leave to appeal in Appeals NA 14 of 2016 and NA 15 of 2016 be dismissed.
There be no order as to costs.
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 Kovacs & Graham (No. 2) 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 BRISBANE |
Appeal Numbers: NA 62 of 2015; NA 87 of 2015; NA 4 of 2016; NA 14 of 2016; NA 15 of 2016
File Number: CSC 762 of 2010
| Mr Kovacs |
Appellant
And
| Ms Graham |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
In this matter the trial of the final parenting and property settlement proceedings between Mr Kovacs (“the father”) and Ms Graham (“the mother”) commenced before Tree J on 30 September 2013. After four days of hearing, on 2 October 2013 the parties agreed on interim orders which provided for the children to live with the mother and spend time with the father. The orders also required the parties to engage in family therapy. That was unsuccessful and the hearing resumed on 28 April 2015 and concluded on 13 August 2015. Final orders were made on 29 October 2015 with reasons having been published on 21 October 2015.
The effect of the orders was that the parties’ three children, B born in 2005, C born in 2007 and D born in 2009, were to live with the mother who was to have sole parental responsibility for them. The two younger children were to spend unsupervised time with the father on the first and third Sunday of each calendar month between 11.00 am and 3.00 pm with changeovers to occur at a contact centre. If on three consecutive occasions the father failed to attend the contact centre by 11.15 am so as to effect a changeover by that time, then the mother was entitled to suspend the time that the father spent with the children unless and until he advised her that he wished to resume spending time with them. The two younger children were also to spend no more than three hours of unsupervised time with the father on specified special days in the event that the father could arrange a suitable person or venue to supervise the changeovers.
The orders did not require the eldest child to spend any time with the father. Rather, in the event that she wished to do so, the orders that applied to the other children would also apply to her.
The father has appealed against these parenting orders. He has also appealed against an interim parenting order made on 13 August 2015 as well as orders subsequently made on 10 December 2015. Leave to appeal is sought against orders made on 3 and 11 February 2016. We shall return to the appeals in more detail in due course, but in order to understand them and the father’s submissions it is necessary to set out a detailed history of relevant events.
Background
The parties met in City N in 2000 when the father was aged 31 years and the mother 26 years. After living in City V for eight months, they lived in City Q for a year then for three years in Sydney before moving to F Town, where they continue to reside.
In 2007 the father suffered a severe head injury leading to permanent brain damage, which in turn has considerably affected his behaviour.
The parties separated in July 2010 with the children continuing to live with the mother. Since that time there has been continual disagreement between the parties as to when and in what circumstances the children should spend time with the father.
After 15 October 2010 the children spent no time at all with the father until the mother commenced proceedings on 17 December 2010, other than on 12 November 2010 when the father took B out of school without the mother’s permission. Thereafter the parties experimented with supervised time, which failed when the supervisor declined to continue to be involved.
Following interviews for the preparation of a family report in October 2011, the mother agreed that it would benefit the children to spend some unsupervised time with the father. In his reasons for judgment at [24] the primary judge described that process as initially working “with a degree of success”, but the father continued to attempt to see the children at their school or day care centre outside the agreed times. This led to the mother agreeing to the father collecting the children from school or day care every alternate Friday and returning them the following Monday. Again, “broadly speaking” this arrangement worked, but the parties remained in conflict with significant disagreements arising on Christmas Day 2012 and New Year’s Day 2013. Shortly after, the mother reduced the father’s time with the children to one night per fortnight. The primary judge found that at this time, because of this reduction or otherwise, the children returned to being angry and aggressive towards the mother.
As referred to above, the initial hearing commenced on 30 September 2013 and concluded on 2 October 2013 when the parties agreed to interim orders which provided for the children to live with the mother who was to have sole parental responsibility for them. They were to spend alternate weekend time with the father from after school Friday to before school on Monday, together with one week of each school holiday period.
Importantly the consent orders also required the parties to attend on a psychologist for a minimum of six months “to engage specifically in reportable psycho-educational assistance to effectively improve individual and co-parenting capacities; or to at least develop appropriate communications and reasonable expectations of the other”.
Immediately difficulties arose which required the matter to return to court and the appointment of a new psychologist. The counselling went very badly and was abandoned in February 2015.
At some stage the father’s daughter from a previous relationship, Ms P, came to live with the father. On 16 August 2014, when the children were spending time with the father, Ms P and the father had an argument and she left the home. Shortly after the police arrived. The father would not let them enter the house so they forcibly entered it, handcuffed the father and removed him. B saw this take place and was greatly distressed by what occurred. She has refused to spend any time with the father since then. The two younger children did not witness the father being arrested. The police contacted the mother and she took the children into her care.
On 20 August 2014 the mother filed an Application in a Case seeking that the 2 October 2013 orders be suspended insofar as they provided for the children to spend time with the father. That order was made by the primary judge on 27 August 2014 but a further order was made allowing for reinstatement of the time upon the father filing a medical certificate from his regular treating medical practitioner stating that he was fit and well enough to care for the children on each alternate weekend. On 12 September 2014 the primary judge lifted the suspension.
The final parenting hearing resumed on 28 April 2015 and continued for another four days. At the conclusion of those days the father was still in the course of being cross-examined (as far as we can tell from the material before us) and the matter was adjourned until 13 August 2015, the next sitting of the Court in Cairns, to conclude the hearing.
Shortly before that date the father filed a certificate from a doctor asserting that the father was not fit to appear at the resumed hearing. Very unhelpfully, it merely stated that the father was suffering from “a medical condition” (no further information was provided) and that he would be “unfit for court attendance for the next week”. Interestingly, and of concern to the primary judge, was that the certificate was not provided by the father’s usual doctor. Following a direction by registry staff, the father filed an Application in a Case seeking an adjournment of the proceedings but he did not serve it or the supporting affidavit on the mother or the Independent Children’s Lawyer (“ICL”).
The father did not appear on 13 August 2015. Unsuccessful efforts were made to contact him by telephone. The hearing then continued in his absence and finished on that day. The orders identified at the outset of these reasons were made on 29 October 2015, with reasons having been delivered on 21 October 2015.
The father filed contravention applications on 2 April 2013, 20 December 2013 and 8 July 2014 alleging various breaches of orders but mainly that, on a number of occasions, the mother failed to make the children available to spend time with him. On 29 September 2014 Kent J ordered that these three contravention applications be adjourned to a date to be fixed, to be heard and determined by Tree J at the time of the final trial of the proceedings. In due course Tree J listed the contravention applications for hearing to be determined with the final parenting orders. On 13 August 2015, when the father did not appear, the contravention applications were dismissed for that reason.
The Appeals
It is convenient to deal first with the appeal against the substantive parenting orders before turning to the appeals against other orders which will be dealt with in chronological order.
The father filed two applications in this appeal, one on 20 June 2016 and one on 9 August 2017, by which, amongst other things, he sought that the Court or the ICL provide the transcript of the proceedings before the primary judge. Those applications were heard and dismissed with ex tempore reasons at the outset of the appeal hearing (Kovacs & Graham [2017] FamCAFC 173). Accordingly, we do not have the benefit of transcript from any of the days this matter was before the primary judge.
Appeal NA 87 of 2015
As we have already recorded, the orders provided for the mother to have sole parental responsibility for the children and for them to live with her. The two youngest children were to spend unsupervised time with the father.
The considerations that led to those orders were helpfully summarised by the primary judge in the following passages (see Graham & Kovacs (No 4) [2015] FamCA 1073):
PARENTAL RESPONSIBILITY
126.Both parties alleged that the other was domestically violent to them. The father concedes – albeit he appears to claim it was justified – that during the relationship he struck the mother’s thigh with sufficient force to leave visible bruising. I am therefore satisfied that there are reasonable grounds to believe that there has been family violence between the parties, and hence the presumption of equal shared parental responsibility does not apply. Even if I am wrong as to that, these parties cannot possibly even begin to negotiate in good faith towards resolving or making decisions about them, with the likelihood - or even certainty – that further litigation would ensue. It would not be in the children’s best interests for these parties to be required to perpetually war over either major or niggling minor matters about the children. One parent must have sole parental responsibility. Anything else would be utterly unworkable. It should reflect the primary residence of the children.
127.There is one exception. There is evidence that the mother causes the children to be known, at times, as “Graham” rather than “Kovacs.” Neither parent should be permitted to change the children’s surnames.
WITH WHOM SHOULD THE CHILDREN LIVE
128.The following points tell in favour of the children living with the mother:
·She has always been their primary carer;
·She appears to have a good track record of medical and educational involvement with the children;
·B refuses to presently spend time with her father, much less live with him. No party contended that there should be a separation of the siblings’ primary residence;
·The father presents as some risk of harm to the children arising from his use of physical discipline;
·The father’s capacity to emotionally provide for the children is dubious at best;
·The father presents as a risk of emotional harm to the children from exposing them to his anger, which risk is proportionate to the amount of time he spends with them;
·The father has no insight as to the effect on the children of the anger which he demonstrates both towards the mother, and generally, or the adverse consequences to them of being exposed to it.
129.Unfortunately I can identify no considerations in favour of the children primarily living with the father, other than it would maximise their exposure to him. However as I have indicated earlier in these reasons, maximisation of exposure is contra-indicated given the risk which the father poses to the children, and would not best facilitate their relationship with him.
130.As to the prospect of equal shared care, Mr S opined in his oral evidence that any attempt at shared care as proposed by the father would be disastrous. He later said that he simply “couldn’t entertain” the idea of shared care in this case. I accept that evidence.
131.In my view the best interests of the children clearly lie with them living with their mother.
TIME WITH THE FATHER
132.The following points tell in favour of the children continuing to spend time with the father:
·They would clearly benefit from having a relationship with him and particularly it will assist them in developing their identity as they move into adolescence;
·Both of the younger children have expressed a desire to spend time with the father, and in the case of D, to increase the amount of time;
·The father represents the only real opportunity for the children to understand and experience their Country S heritage.
133.On the other hand the following points tell in favour of the mother’s primary proposal:
·The father’s obsessional anger with the mother is likely to continue, and there is a real risk of emotional harm to the children in being continually exposed to that;
·Her proposal would wholly protect the children from any risk of harm posed to them by the father.
134.In my view the weighing of those factors lie in favour of the children maintaining some form of relationship with the father. In so observing I am particularly mindful of the principles expressed in s 60B(2).
135.The question then becomes at what level should that relationship be maintained. This is not a case where the best interests of the child lie in spending equal time with the father, or substantial and significant time with him. I say that because of the magnitude of the risk which the father poses to the children from exposure to his anger, his use of physical discipline, and his doubtful capacity to provide for their emotional needs.
136.I have given some consideration as to whether, particularly given Dr G’s view in relation to supervision, the father’s time with the children should be supervised. However not only do I suspect that the father is not a good candidate for Contact Centre supervision, which would probably be withdrawn upon the nigh inevitable demonstration of anger by the father, but there is also the difficulty that the children’s experience of their father would be in other than a home environment and hence somewhat artificial.
137.There is probably no ideal solution to this case. However I am provisionally of the view that the best interests of the children lie in spending something in the order of four hours each alternate weekend with the father, save that is should be optional for B. However I am satisfied that to avoid the children being exposed to the parents’ conflict the changeovers should be effected at the F Town Contact Centre, and more, that the time should be spent on Sunday rather than on Saturdays so as to enable the children to meet any sporting commitments which they may have. Moreover in my tentative view it is appropriate that the time should be so structured as to enable the father to spend some part of Sunday afternoon with the children, perhaps ideally sharing a meal with them. Providing that the Contact Centre can facilitate it, I have provisionally concluded that the appropriate regime of orders would be for the children to spend time with the father between 11:00pm and 3:00pm, acknowledging that that would require them to be dropped off at the Contact Centre at 10:30am and picked up from it at 3:30pm. Subject to what follows, I am therefore inclined to make orders to that effect. In any event there will be liberty to apply if such times as I may order cannot be accommodated by the Centre.
…
140.I should also specifically explain why, upon balance, I am of the view that the children spending overnight time with the father is not in their best interests, at least at present. Particularly:
·It seems plain that B will not participate in overnight time, but if four hours of day time is on offer, and the boys are attending it, it is more likely that she will work towards re-establishing her relationship with her father, given the likely increased perception of safety;
·It will limit the father’s opportunity to expose the children to his anger or to physically discipline them;
·It will minimise the prospect of the children being exposed to conflicting or divergent regimes of medical care (in which regard I should note that the parties have proved incapable of any responsible communication in relation to medical issues pertaining to the children);
·It may serve to limit the mother’s anxiety at the risks which the children are exposed to when spending unsupervised time with the father;
·As I have previously noted, ironically the children’s experience of the father is likely to be improved by less time rather than more time.
141.Finally I should say that the reasons which persuade me that the father should not spend overnight time with the children apply with stronger force in relation to any suggestion that he should have block holiday time with them.
Did the primary judge fail to provide procedural fairness by taking into account irrelevant matters and by not taking into account relevant matters?
Did the primary judge exercise his discretion unreasonably in not properly taking into account the multitude of Family Reports during the trial?
These two grounds of appeal were directed to the way in which the primary judge took the evidence into account. The father did not specifically identify the matters that he asserted the primary judge should or should not have taken into consideration. However, we shall deal with these grounds by addressing the topics that we have gleaned from his Summary of Argument.
By way of introduction we note that it is well established that error in the exercise of a discretion may be established “[i]f the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration”: House v The King (1936) 55 CLR 499 at 505. Absent such an error, the weight to be given to particular facts or considerations is very much a matter for the trial judge: Gronow v Gronow (1979) 144 CLR 513 at 520.
Did the primary judge ignore the father’s entire written evidence and the evidence of all report writers and family consultants?
In his Summary of Argument, the father submitted that the primary judge “refused and ingored [sic] to … take under consideration appelant’s [sic] entire written evidence”. A similar complaint was made in relation to the expert evidence.
This is plainly not so – his Honour’s reasons are replete with references to and discussion of the father’s evidence. The reasons also extensively cover the evidence of the expert witnesses including that of the family consultant.
The father did not point to any particular evidence of his or any of the experts which was not considered by the primary judge.
Further, we observe that a trial judge is not obliged to refer to every piece of evidence in a case: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]. The mere failure to refer to some evidence does not mean that it has not been considered.
There is no merit to this complaint.
Did the primary judge take into account the incident of 7 August 2013?
The father submits that an episode of what he asserts to be domestic violence committed by the mother was not taken into account. The evidence of this is sparse and consists only of paragraph 2 of the father’s affidavit of 2 December 2013, and annexure 1 to that affidavit.
At paragraph 2 of his affidavit filed 2 December 2013, the father merely asserts that:
There is 24th month uncontested protection order made on […] of October 2013 against violent and aggressive mother, who exposed 3.5-year-old [D] on […] August 2013 to domestic violence and physical assault of the father.
(Emphasis added)
The father did not describe in any further detail the alleged assault by the mother.
Annexure 1 is an affidavit sworn by the mother on 9 October 2013 in which she describes the father lunging through her car window, pinning her to the seat and preventing her from moving. She said she was shaken and in severe pain. D was present and was, according to the mother, also scared and crying.
We do not see how that evidence supports the father’s case. The mother’s affidavit, on which the father relies, clearly describes an assault by him.
In any event, there is no reason to think that the primary judge ignored this evidence, even though there was no specific reference to it. His Honour expressed the view that whilst he could not “wholly absolve the mother from responsibility for the parental conflict”, he assessed the father as largely being responsible for it (at [96]). His Honour concluded:
124.There are present family violence orders in place and there have been both interim and final orders in place over the years. The only inference which I draw from those is that the father behaves in a hostile, angry and conflictual way when forced to interact with the mother, particularly involving the children.
There is no merit in this aspect of the father’s challenge.
Did the primary judge place excessive weight on the incident of 16 August 2014?
This is the incident to which we have already referred, in which the father was handcuffed by the police after an argument with Ms P.
The primary judge recorded this incident at [36]–[38] of his reasons and took account of it in the following way:
80.The physical risk which the father is said to pose to the children’s physical safety is on two fronts. The first arises from his use of physical discipline upon the children. The second arises as an incident from his anger and impulsiveness, and probably reached its zenith in the events of 16 August 2014.
…
87.Turning then to the father’s anger and impulsive behaviours, perhaps the most serious episode was the 16 August 2014 events which started with verbal disagreement between the father and Ms P. It appears as though a neighbour hearing the dispute called the police. The father refused to respond to police requests to open the door, despite police seeing him only several minutes earlier and the lights on the house then being turned off. Notwithstanding repeated knocks and calls, the father refused to answer the door and police used a sledgehammer to gain entry into the dwelling. The two boys were observed by police to be asleep in the lounge room whereas the father was in his bedroom with B. The father’s version of events is that he did not deliberately refuse to answer the door but was unaware that the police were seeking access. In his cross-examination he seemed to say he was under the influence of sleeping tablets. I do not accept that evidence.
…
93.The evidence is littered with many instances of the father’s self-obsessed, angry, non-child focussed behaviour. The most notable are the events of 16 August 2014, and the father’s most recent and appalling attempt to physically remove B from school so as to force her to spend time with him. There are, however, many more.
Thus, this incident was taken into account and given substantial weight by the primary judge. This is a graphic example of the father’s “self-obsessed, angry, non-child focussed behaviour” and demanded significant weight being given to it. The father’s refusal to cooperate with the police led to an ugly incident in front of B that greatly distressed her and directly led to her not wishing to spend any time with the father.
The father’s real complaints seem to be that he was falsely arrested and that the mother destroyed his artistic portfolio, neither of which is particularly relevant to the issues before the Court. He also submits that the primary judge failed to give significant weight to his assertion that B said to a policewoman “I want daddy to come back”, which he says is evidenced by a voice recording.
We are unable to ascertain, in the absence of the transcript, whether any evidence to this effect was in fact adduced by the father.
Assuming for the moment that B made that statement, it does not mean that what the family consultant described as B’s well-considered and often repeated subsequent statements about being scared of her father and not wanting to see him are deprived of weight.
Further, one can readily understand that a child having seen her father violently arrested and taken away by the police might say such a thing in the heat of the moment.
Again there is no merit in this claim.
Did the primary judge ignore the allegations of sexual abuse of B?
The father submitted in his Summary of Argument that B had been sexually abused because the mother had refused “to transfer children as per orders instead child is sent to strangers’ house where she is sexually molested by older kids”.
It is correct to say that there is no reference to these allegations in the primary judge’s reasons – however, the evidence relied upon by the father is vague and contradictory. The father’s evidence consists solely of these paragraphs in an affidavit sworn by him on 28 July 2014:
14. During that visit on 27 October 2013 [C] said to me in [B]’s presence that, “Two boys were sexing [B] at the [Mr Y]’s House”, [B] I saw everything”. I reported the incident to Child Services.
15. On 8 November 2013 I collected the children at 3:00 pm from [school] and [day care] and returned them to the mother’s care at [school] and [day care] at 8:45 am on Monday 11 November 2013.
16. During that visit [C] denied that he had seen two boys sexing [B] and said that he didn’t remember.
That evidence provides no basis for a finding of sexual abuse and the primary judge did not err by not referring to it.
Did the primary judge fail to accept the recommendations contained in the report written on 21 November 2014?
The father submitted that the primary judge ignored the recommendations made by the family consultant.
On 20 October 2014 his Honour ordered that a family consultant prepare a Child Inclusive Conference Memorandum containing the views of B. The family consultant did so and prepared a memorandum dated 21 November 2014. The recommendations were that B may be assisted by counselling and that if she were to commence spending time with her father, “this would be best approached by first commencing with short visits during the day”.
His Honour recorded the content of this memorandum in the following paragraphs:
81.There have consistently been reports of physical discipline of the children by the father. Relevant to this is a report prepared by a family consultant, Ms W, arising from an attempt to reintroduce B to the father. Interviews were conducted by Ms W with the child on 20 November 2014. In her subsequent memorandum, she said that B identified that she had witnessed violence between her father and Ms P and between the father and his ex-partner. She further reported that the father uses physical punishment upon her and C when disciplining them, and had threatened to kill her and particularly “cut me to death.” She reported that her father had attempted to drown D by pushing his head underwater approximately five times. She further said that her father was “always angry” and that he says and does things which scare her. She particularly recalled the episode during which the police arrested her father and other occasions when he had attempted to take her from school.
82.She was specifically recorded as having said as follows:
[B] stated “when I back chat him, he is really mean” referring to her father. [B] stated that her father hits herself and her brother [C] with his hand on their arms, thigh and bottom. She stated that her father also hits her and [C] on some occasions with a belt.
When asked what would need to be different to enable her to feel safe to spend time with her father [B] stated “not angry anymore – no hitting”, she then stated she was most nervous about spending time with him at night.
83.However with one exception there do not appear to have been any allegations raised of actual physical harm suffered by the children consequent upon the administration of any corporal punishment. The exception is the allegation by Ms P that on 16 August 2014 the father “forcefully hit” her in the chest area causing her to fall over.
That consideration led to the following conclusion:
120.The children have expressed views in relation to their preferred parenting arrangements. B’s view is plain: she wishes to have nothing more to do with her father at this point in time. Perhaps time will heal that, but I give her views real weight, particularly given that they appear to be primarily borne out of the events of 16 August 2014. On any view that would be a terrifying experience for a young girl, and would substantially erode her faith in the father to properly and safely care for her. Moreover the father’s repeated attempts to cajole – or force – her into spending weekends with him have only again exposed her to not only parental conflict, but the humiliation of it being played out in front of her peers at school. I have little doubt that she was being truthful when she told Ms W that if she was to forced to spend overnight time with her father she would run away.
Thus, the memorandum supports the primary judge’s finding and no relevant matter was ignored.
Did the primary judge ignore Ms X’s evidence and fail to find that the mother was bullying the father?
Ms X was the children’s counsellor. The father relied on her evidence to support a submission that the mother bullied the father. He now submits that the primary judge erred in not making that finding.
Little weight was given to evidence of Ms X by the primary judge because his Honour considered her to be “heavily emotionally invested” in the children and too closely associated with the mother.
The weight to be given to a particular witness’s evidence is very much a matter for a trial judge. The High Court described the limited circumstances in which an appeals court will interfere in such a finding in Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43] as follows:
… a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.
(Footnotes omitted)
As the father pointed to no such incontrovertible evidence or compelling inferences that required the acceptance of Ms X’s evidence, this aspect of the ground must fail.
Did the primary judge err by not relying on the cross-examination of Dr G?
The father asserts that the primary judge did not rely upon the cross-examination of Dr G on 30 April 2015 during which, according to the father, Dr G said that he had made an error about the father and that supervised time was no longer required.
Dr G was a psychiatrist who examined the father for the purpose of writing a report. In his report Dr G found that the father had an “apparent loss of impulse control and a tendency to become aggressive when provoked”. He believed that the father had “quite significant residual impairments associated with the brain injury”. Taking into account the father’s “insightlessness and apparently substantiated behavioural problem[s]”, Dr G opined that “it is appropriate that he have supervised contact only into the foreseeable future” (at [64]–[65]).
After referring to this evidence the primary judge turned to the cross-examination of Dr G by the father and continued:
68.The father further cross-examined Dr G as to whether his anger was justified. Whilst Dr G said he was not unsympathetic to the father, he said that the critical issue is the fact of the rage and the level at which it is being expressed
69.As to the father’s lack of insight, he emphasised that this particularly related to the effects of his rage. The father suggested that perhaps some part of his anger might be generated by his culture and family values, but Dr G emphasised that whatever its source, the problem was the effect of the anger upon the children.
70.Later in his cross-examination Dr G emphasised that, as he had said earlier in his report, simply based upon the father’s presentation on the day, he would not have identified that the father suffered any problem, but rather his opinion was based upon his perusal of the other documents, particularly the communications between the mother and father. The father inquired of him as to how, from a psychiatric perspective, he could help. Dr G said that the best that could be hoped is that the father would become aware of his anger, appreciate that it was a negative, and would made a decision to “back right off.” By that he explained that the father should accept the level of time he presently has with the children, and use it in a good way rather than a negative or angry way. Time and time again he emphasised that his concern lay in the father’s level of anger and the likelihood that it would impact upon the children because it was difficult to protect the children from it. He expressly disavowed that being exposed to anger can be of any sort of assistance to children whatsoever. Although he conceded that it was possible the father could protect the children from his anger, he said that it was nonetheless highly likely to “rub off” on them.
Importantly, there the primary judge recorded that Dr G had not found the presentation of the father to him, of itself, to indicate problems, but that the documents which he had later perused did. The evidence of the communications between the parties formed a significant part of those documents.
That is consistent with the first report of Dr G, in which he said that based on the father’s presentation alone, and if he had no other information about him, he would have no reason to consider that the father had a significant continuing problem. As Dr G himself said, the other information before him indicated the contrary.
Of course, the accuracy of any record of the communications between the parties and the weight to be given to it was a matter for the primary judge and not for Dr G. It is clear, however, that his Honour found that the parties’ conduct towards each other was marked by substantial hostility and conflict and that he assessed the father as largely being responsible for it (at [96]). His Honour also said that:
98.In my view, the mother has on occasions either provoked or over-reacted to the father (for instance regularly involving the police) but as I have previously indicated, the father has been a very difficult person to her to engage with in relation to the children after separation.
…
107.The key to maximising the benefit which the children obtain from their relationship with the father is to seek to diffuse the father’s anger towards the mother. Unfortunately that was tried in the October 2013 consent orders which were, it is clear, an abject failure. Far from the parties improving their communication, the sessions became a fresh battle ground for conflict. It appears as though the father may never let go of his anger towards the mother. Unfortunately that means that he is likely to continue to demonstrate that anger when the children are with him, and I do not accept his denials that the children have thus far been shielded from his anger. It is plain from their statements to the several interviewers that they are well aware of their parent’s conflict and have been monumentally embarrassed on occasions when the father has demonstrated that conflict at school or sporting events in front of their peers.
…
113.I have little doubt that the mother is exasperated by the father’s often unreasonable and unremitting conduct towards her. Likewise I have little doubt that protecting the children from the conflict between herself and the father is what primarily motivates her present position in relation to final orders, rather than a simple desire to rid the father from her and the children’s lives.
…
117.The sad fact of this case is that the answer to this question must be a resounding no. These parents do not have any realistic prospect of ever being able to communicate in a child focussed way that is not dominated by anger, hostility and conflict. That much has been borne out by the failed attempt to counsel them into proper communication. Unfortunately it appears as though these parents are doomed to a lifetime of conflict in relation to the children.
In our opinion these findings amply justify Dr G taking the further information provided to him into account and support his opinion that there should be supervised time. Dr G made no other recommendation and to the extent that the father suggests otherwise his submissions are based upon a misunderstanding of the evidence.
Thus, the matters that were raised with Dr G in the course of cross-examination by the father, as recorded by his Honour, were expressly taken into account by the primary judge.
As we do not have the benefit of the transcript, we are unable to ascertain whether, in fact, Dr G did accept, in the course of cross-examination, that he had made an error about the father and that supervised time was no longer required. Given his other evidence, that would have been a surprising conclusion for him to have expressed. It would be most surprising too that such evidence would not have been recorded by the primary judge in his reasons, given the detailed discussion by his honour of Dr G’s evidence.
In the absence of the transcript we are unable to conclude that there was any error by the primary judge in dealing with the evidence of Dr G.
Did the primary judge fail to give proper weight to the evidence of Mr R and Mr S?
The father submits that the primary judge ignored the evidence of Mr R and Mr S, which he asserts was to the effect that “both parents are good parents and children need both of them” and that both parents were “able to parent their children in share/co-parenting arrangements”.
Mr R was the psychologist who conducted the counselling pursuant to the 2 October 2013 orders and Mr S prepared a family report filed 18 July 2013. It was he who recommended the counselling that was later undertaken by Mr R.
The father’s Summary of Argument, confusingly, complains that Mr R lied to the Court, committed perjury and gave “evidence what [sic] the judge wanted to hear instead telling than [sic] the truth”. Presumably, that suggestion does not apply to the evidence given by Mr R on which the father seeks to rely.
The primary judge recorded the evidence of Mr R in the following way:
76.Pursuant to the 2 October 2013 consent orders a psychologist, Mr R administered the therapy. He conducted five sessions with the parties between 17 October and 10 December 2014, although one session was solely with the father. He expressed the results and his opinions as follows:
4.The parties’ motivation to work together waned towards the end of these sessions as their considerable differences and animosities continued to be raised. It seemed clear that they had difficult communication patterns and their previous and current dispute interfered with their ability to work effectively together. I considered that both parties perceived the value in being able to work together, but they were unable to do so.
5.The parties were committed towards working together and at times demonstrated limited capacity to do so. Their animosity and poor communication prevented them from exercising their commitment towards working together.
6.It was my opinion that it would be possible for them to share the parenting but this would continue to be difficult for them both, and it seemed likely there would be further episodes of conflict and misunderstandings which would interfere with shared parenting efforts.
77.In his oral evidence Mr R identified that, in his opinion, the mother was the trigger for much of the father’s emotional display and anger.
…
110.In his oral evidence, Mr R did acknowledge that some children do endure – and cope with – share cared in the face of parental hostility (for instance by changeovers being effected by them walking across a park between the parents who cannot be trusted to even come within earshot of each other) however he accepted that this was inevitably exhausting and frustrating for the children.
In a report dated 3 October 2014, which was annexed to an affidavit filed by the ICL on 20 October 2014 (which we note was not included in the appeal books but which we were able to locate on the court file), Mr R had said:
It is my opinion that the parties demonstrate significant potential to develop and maintain shared parenting arrangements despite the differences in their characters and temperaments.
However, that optimism was not maintained. In a report dated 21 April 2015 he noted that the parties lacked the motivation, commitment or communication skills to continue to work together. He concluded:
It was my opinion that it would be possible for them to share parenting but this would continue to be difficult for them both, and it seemed likely there would be further episodes of conflict and misunderstanding which would interfere with shared parenting efforts.
Other than for these passages we are unable to locate any evidence of Mr R’s akin to that asserted by the father, although we do not have access to the transcript of his oral evidence.
The primary judge particularly relied upon the evidence of Mr S in the following manner:
102.Mr S’s evidence was that a change in primary care always effects some need for adjustment in children. That said, he noted that children can be remarkably flexible. In this case he said that the children were attached and strongly bonded to both parents. They would likely remain attached to both parents were there to be a change in primary care. I accept that evidence. However I am also satisfied that the father’s approach to parenting is quite different to the mother’s, and there would be some considerable dislocation in the children’s lives.
103.Mr S’s evidence was that as a general proposition, children gain benefit from access to both parents. Particularly he said that during their teenage years, children have an increased need for same sex identification as part of the formation of their identity. He said that children develop best if there is plenty of opportunity to see appropriate mother/father relationships on display. He said that this is best experienced through their own parents.
Once again, we are unable to locate any evidence of Mr S akin to that asserted by the father. Perhaps the father had these general passages in mind.
These passages clearly indicate that the primary judge took into account and gave significant weight to the evidence of Mr R and Mr S.
It follows that the father has failed to establish any error in the primary judge’s approach to the evidence of these two witnesses.
Did the primary judge deny the father natural justice in denying him the opportunity to be heard on the last day of the trial?
By this ground, the father asserts that “the trial judge denied the father natural justice in denying him the opportunity to be heard on the last day of the trial”.
As we have explained, the father did not appear on the last day of the hearing. After attempts were made to contact him the hearing proceeded in his absence.
The father submits that the primary judge erred in failing to adjourn the proceedings to another date.
As referred to above, on 11 August 2015 the father filed with the registry a doctor’s certificate, which said:
I hereby certify that on Tuesday 11 August 2015 I examined [the father] who in my opinion is suffering from a medical condition and will be unfit for court attendance for the next week and I suggest a review in a month.
Shortly after, the Registry Services Team Leader sent the father, the mother’s legal representatives and the ICL an email advising them of the following (text and emphasis as per the original):
Dear All Practitioners and Parties (Mr [Kovacs])
I am directed by Justice Tree to inform you of the following.”
It is noted that an Application for an adjournment of the hearing of this matter has not been filed. I am writing to advise that this matter remains listed for for hearing as previously advised at 10am on Thursday 13 August 2015 before Justice Tree at Cairns.
Should there be no appearance by Mr [Kovacs], the matter will proceed on an Undefended basis and orders can be made in his absence.
On 12 August 2015, the father filed an Application in a Case seeking an adjournment. The affidavit in support stated that he sought an adjournment for at least one month “to allow for my doctor to review my condition” and annexed the doctor’s certificate set out above. Neither the application nor the affidavit was served on the mother and the ICL.
On 13 August 2015 the primary judge dismissed the father’s adjournment application and resumed the final hearing of the parenting and property proceedings. The father’s contravention applications were dismissed.
In Taylor v Taylor (1979) 143 CLR 1 at 15–16, Mason J said that it is “prima facie the right of each party to have the proceedings heard in his or her presence and that justice to both parties required that each party should be entitled to present his or her case”.
However, if a party chooses not to attend proceedings of which they were aware, then they have not been denied the opportunity to be heard, as Kirby J explained in Allesch v Maunz (2000) 203 CLR 172:
38.… Having regard to the circumstances in which the initial proceedings took place in the absence of Mr Allesch (the appellant), it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
It is clear that a trial judge has a discretion as to whether or not to proceed in the absence of a party (McMahon and McMahon (1976) FLC 90-128 at 75,606; Buljubasic v Buljubasic (1999) FLC 92-865 at [24] and following; Barbey & Tuttle (2013) FLC 93-534 at [90] and Talbot & Talbot (2015) FLC 93-660 at [16]–[22]).
In the present case the primary judge was entitled to take into account the length of time the proceedings had been on foot (since 2010), the duration of the hearing itself (which commenced in September 2013, was suspended for the attempted counselling and resumed, but did not finish, in April 2015), the fact that the evidence was all but completed (about one hour of the father’s cross-examination remained), the entirely unsatisfactory nature of the medical certificate relied on by the father and the fact that the father was well aware of the date of the resumed hearing and was expressly warned as to what might occur if he did not attend.
The decision to proceed was open in those circumstances, if not compelling.
The primary judge did not deny the father natural justice by proceeding on the last day of the hearing in the absence of the father.
This ground has not been established.
Did the trial judge act in a manner both contrary to the best interests of the children and prejudicial to the father’s case in allowing the matter to take more than five years to be finalised?
Was the outcome of the matter manufactured by the process carried out under the direction of the judge?
We understand the gravamen of these two grounds to be that the proceedings were delayed and the outcome dictated by the suspension of the proceedings to enable the counselling to take place and thus this process mandated the orders that were ultimately made. This was submitted to be a “deliberate act of manufacturing the outcome of the process”.
Thus to the extent that they are proper grounds of appeal they are challenges to the integrity of the proceedings and the way in which they were conducted.
As we have already set out, after the proceedings were commenced in 2010 there were a number of unsuccessful attempts by the parties to settle upon acceptable parenting arrangements. This may be the reason why the proceedings did not come on for hearing until 30 September 2013. Certainly, we were not advised of any other explanation.
Prior to the hearing on 30 September 2013, Mr S, the family report writer, had recommended that the parties undergo a period of counselling to address unresolved personal and relationship issues and to provide “psycho-educational assistance to effectively improve individual and co-parenting capacities; or to at least develop appropriate communications and reasonable expectations of the other”.
As we have seen, on 2 October 2013 interim orders were made by consent to enable that counselling to take place. Whilst it is true that these orders were made by the primary judge, it must not be overlooked that they were made at the request of the parties.
Difficulties immediately arose because the father was not inclined to comply with the orders. He now asserts that he was bullied by the mother’s lawyer and the ICL into agreeing to them.
After a number of court appearances and the appointment of a new counsellor, the counselling commenced on 17 October 2014 and ended on 10 December 2014 because it was not at all successful.
The upshot was that the hearing was listed to resume on 27 April 2015. The hearing occupied the whole week and on 1 May 2015 was adjourned to 13 August 2015, which was the next sitting of the Court in Cairns. There is no suggestion that this week of hearing was not fully occupied with the taking of evidence.
The father did not attend on 13 August 2015 and the matter concluded in his absence.
As the above chronology demonstrates the main reason that the proceedings took five years to be completed was that the parties themselves, quite properly, attempted to resolve the parenting difficulties by trialling various parenting regimes in 2011 and 2012 and by attempting a formalised counselling process in 2013 to assist them to deal with the difficulties faced by them and by the children. That counselling process did not start until 2014 because of the father’s attempt to go back on his agreement to that process and his applications to change the counsellor. Once that failed the matter returned to court and could not finish within its allotted hearing time.
Thus, the process was one that was put in train by the parties themselves with the best of intentions. It is unfortunate that each attempt to manage the parenting issues themselves was quite unsuccessful and led to a delay in the proceedings being finalised.
However, how any of this delay can be sheeted home to the primary judge is beyond us and we reject any suggestion that the above steps were “manufactured” by him to effect a particular outcome.
These grounds are entirely misconceived and must fail.
Did the judge act with bias in determining prior to commencement of the trial that he would not be changing the orders in place?
The father’s submissions as to this ground, as contained in his Summary of Argument, were (as per the original):
on 18th July 2013 Tree J said: “We don’t need any report writers …, I will make orders myself”. During the next three years of unnesesary trail ( mother was comunicating without the problems on the same contact conditions between 2011-2013) judge approved many report writters to prepare reports and at the end of his involvement he had ignored all of their opinions as he prematurely pronaunced on 18th of July 2013 what he is about to do at the end of the process..
As the father has not provided a copy of the transcript it is impossible to know what the primary judge actually said on that date. If the complaint is limited to the words quoted in the submission we do not see why those words imply prejudgment on the part of his Honour: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 370.
Further, as far as we can determine, at no stage did the father ever ask the primary judge to disqualify himself. Although the father was not legally represented at the time, it is still difficult now to raise the matter: Vakauta v Kelly (1989) 167 CLR 568 at 572.
No error has been established.
Did the trial judge act with both bias and contrary to the best interests of the children in allowing the mother to constantly disobey the orders in place?
This heading is a true reflection of the submissions advanced by the father. It is necessary to say at the outset that we reject the premises on which the submissions are based. The primary judge had no obligation to supervise compliance with the orders and did not do so. Further, it has not been established that the mother “disobeyed” the orders let alone did so constantly. Whilst the father had filed a number of contravention applications alleging that the mother had not complied with orders they were dismissed due to the father’s non-attendance.
Moreover, this is not a valid ground of appeal against the parenting orders that were made because it does not point to error in the making of these orders.
The father’s three contravention applications (filed on 2 April 2013, 20 December 2013 and 8 July 2014) came before Kent J on 29 September 2014 when his Honour ordered that they be heard with the final parenting proceedings. An appeal from these orders was dismissed on 26 May 2015.
The contravention applications were the appropriate vehicle for determining any issues of non-compliance with the orders in place. It was the decision of Kent J, and not the primary judge, that these applications be heard at the same time of the final hearing. As the decision of the Full Court makes clear, that was an entirely appropriate course (Kovacs & Graham [2015] FamCAFC 98).
There is no substance in this ground.
Conclusion
There being no merit in any of the grounds of appeal or the complaints raised in the Summary of Argument, it follows that the appeal will be dismissed.
Appeal NA 62 of 2015
On 13 August 2015, which was the last day of the parenting hearing and the day on which the father did not appear, the primary judge made a number of orders. The first was to again suspend Order 5 of the orders made on 2 October 2013 (which provided for the children to spend time with the father). Time with C and D was to be reinstated upon the father providing the mother and the ICL with a medical certificate from his usual doctor that complied with the terms of the order and expressed the opinion that the father was fit and well enough to care for the two younger children each alternate weekend.
His Honour also dismissed all outstanding contravention applications and reserved his decision as to the final parenting and property orders.
The father’s grounds of appeal are:
1.That the father was denied procedural fairness in not giving the father proper opportunity to appear and contraventions.
2.That there was actual bias or a reasonable apprehension of bias against the father in the manner in which the trial was heard and decided.
3.That his Honour did not listen to the instruction advice or information given to him by Justice May after she determined she would speak to him directly after the appeal of Justice Kent’s interim orders 26 May 2015.
4.That the dismissal of the father’s application for a contravention order was wholly unreasonably in the circumstances and contrary to the best interests of the children.
5.That the outcome of the matter was manufactured by the process carried out by the court.
Grounds 3 and 5 are not proper grounds of appeal. In any event, for the reasons given earlier and for reasons which follow in relation to the contravention applications, Ground 5 is not supported by the facts.
The father’s submissions do not identify any matters that might indicate bias. It is therefore impossible to take Ground 2 further.
We have also dealt with Ground 1 in our discussion of Appeal NA 87 of 2015.
Thus it remains only to consider Ground 4, which, because of the way in which it was argued, will also require a consideration of Ground 5 notwithstanding the difficulties we have already noted with it.
The submissions in support of this ground formed a significant part of the father’s oral submissions. In short, he submitted that the combination of the delay in the proceedings to enable family counselling to take place, the adjournment and the ultimate dismissal of his contravention applications established that the final result had been “set up” by the primary judge.
Essentially his submission is that had the contravention applications been heard reasonably promptly, they would have established that the mother had regularly breached the orders. In turn, these breaches would have been significant matters in support of the orders sought by him. Thus he submits that the adjournment of the applications and then their ultimate dismissal proves that the outcome was “manufactured”.
The issues as to whether contravention applications should be heard before or with applications for final orders and whether they should be heard by the judge hearing the application for final orders or another judge can be quite difficult and are capable of being properly resolved in different ways. In this case Kent J, and we note not the primary judge, determined that the contravention applications should be heard by the primary judge at the time of the final hearing. An appeal by the father against those orders was dismissed.
Those events inexorably dispel any notion of an outcome having been manufactured by the primary judge.
We have already found that the primary judge was entitled to proceed on 13 August 2015 in the absence of the father. The father was on notice that the matter would proceed in his absence. We do not see why his Honour was not entitled to dismiss the contravention applications when the father, who was aware of the hearing date and had been alerted as to the risks of non-attendance, failed to appear to prosecute his applications.
Ground 4 cannot succeed and the appeal will be dismissed.
Appeal NA 4 of 2016
On 10 December 2015 the primary judge made the following orders against which the father appeals:
1.On or before 4.00pm Thursday 15 January 2016, the father make file and serve any affidavit material upon which he intends to rely in opposition to the mother’s Initiating Application filed 27 October 2015.
2.On or before 4.00pm Friday 22 January 2016, the mother make file and serve any affidavit material in response to material that may be filed with by the father pursuant to Order 1.
3.The father’s Application in a Case filed 26 November 2015 insofar as it seeks and [sic] order for my recusal, is adjourned to 2.15pm on Wednesday 3 February 2016 in Cairns.
4.Paragraph 2 of the father’s Application in a Case filed 26 November 2015 be dismissed.
5.Costs of today’s hearing are reserved.
NOTATION:
A.The father’s recusal application (which will be the first application dealt with) and the mother’s application seeking orders under Family Law Act s 102QB, together with the father’s contravention application are all listed for hearing to 2.15 Wednesday 3 February 2016 in Cairns.
Paragraph 2 of the father’s Application in a Case filed 26 November 2015 sought a stay of the orders of 13 August 2015 and 29 October 2015.
The father’s grounds of appeal are (as per the original):
1. That the judge acted with bias and or denied the father natural justice in dismissing his application for a contravention order and stay orders of (13 August 2015 and 29 October 2015) without a proper hearing.
2. That the judge unreasonably refused to recuse himself considering he acted with actual bias throughout the more than five year proceeding.
3. That the judge acted with actual bias in that he prosecuted a private vendetta against the father from the time immediately after Justice May said she would speak to him directly.
Orders 1 to 3 are procedural orders that have been put into effect. Any appeal against them is futile and an abuse of process.
In any event, the aspect of the matter that was adjourned by Order 3 was the application for the recusal of the primary judge. It therefore follows that Ground 2, which deals with the failure of his Honour to disqualify himself, is misconceived because that application was not dealt with but rather adjourned for hearing on 3 February 2016.
Returning then to the dismissal of the stay application, once again the submissions do not identify the alleged bias and that aspect of the ground cannot be taken further. Similarly the nature of the asserted denial of natural justice is not identified in either the ground of appeal or the Summary of Argument.
We are at a loss to understand the balance of the ground.
First, the application before the Court on 10 December 2015 only sought a stay and recusal. Only the stay aspect was determined on 10 December 2015 and the recusal was adjourned.
The father had filed a further application on 2 December 2015. It was headed “Application – Contravention” and alleged two contraventions by the mother of the orders of 29 October 2015 (we note the application was not included in the appeal books but we were able to locate it on the court file). It was fixed for hearing on 3 February 2016 when the father did not appear. It was adjourned to 11 February 2016 when it was struck out because the father again failed to appear. It is the subject of Appeal NA 15 of 2016 and we assume that the reference to it is this notice of appeal is an error.
Secondly, it seems clear that there must have been a hearing to some degree at least, because on 10 December 2015 the primary judge delivered succinct but thorough ex tempore reasons for refusing the stay (Graham & Kovacs (No 5) [2015] FamCA 1115).
In that circumstance and as the father’s submissions do not identify why he said there was not a proper hearing, it is impossible to take this ground further.
The appeal will be dismissed.
Appeal NA 14 of 2016
This is an application for leave to appeal and if leave is granted an appeal against the orders made on 3 February 2016, which was the date fixed for hearing the father’s application for the primary judge to disqualify himself and the mother’s application that the father be declared a vexatious litigant. The father did not appear and the applications were stood over to 11 February 2016. Directions were made as to the procedural steps that needed to be taken by the father if he was to seek a further adjournment of the proceedings.
An appeal is thus entirely futile, and leave should not be granted.
Further, the father relies upon 21 extensive grounds of appeal. None asserts any error in the making of the orders of 3 February 2016.
For these reasons the appeal is vexatious and oppressive.
Appeal NA 15 of 2016
On 11 February 2016 the father did not appear and both the father’s contravention applications referred to in [136] above and the balance of his Application in a Case filed on 2 December 2015 were struck out.
As the primary judge pointed out in his reasons, the striking out of an application is not an adjudication of the application on its merits. The father could seek to have the applications reinstated or simply file further applications (Graham & Kovacs [2016] FamCA 281 at [13]). We also note that the Court may at any time vary or set aside an order made in the absence of a party: r 17.02(1)(a) of the Family Law Rules 2004 (Cth). The father thus has courses available to him other than to appeal.
The father relies upon 21 grounds of appeal, many of which are extensive. None asserts any error in the making of any of the orders of 11 February 2016. Any appeal is therefore vexatious and oppressive.
In any event, the orders made on that day were open to be made as the father had failed on two occasions, without any explanation, to appear.
As the orders made by the primary judge did not finally determine the parties’ rights, they are interlocutory orders. They are not child welfare orders and leave to appeal is required. That leave will be refused because any appeal would be futile, vexatious and oppressive.
It also needs to be mentioned that the father also seeks leave to appeal against the following two orders also made on 11 February 2016:
3. The mother’s Initiating Application filed 27 October 2015 is dismissed.
4. Otherwise all outstanding applications in the trial division be dismissed and the matter is removed from the list of active pending cases.
The mother’s Initiating Application sought a vexatious proceedings order against the father pursuant to s 102QB of the Family Law Act 1975 (Cth). We merely note that it is against the father’s interests to appeal the dismissal of that application and that there is no utility in doing so.
Conclusion and Costs
Each of the father’s appeals and applications for leave to appeal have been unsuccessful and will be dismissed.
Neither the mother nor the ICL sought an order for costs in the event the appeals were dismissed. Accordingly, there will be no order as to costs.
I certify that the preceding one hundred and fifty-two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Forrest JJ) delivered on 24 November 2017.
Legal associate:
Date: 24 November 2017
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