Lietzau & Lietzau
[2024] FedCFamC1A 94
•6 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lietzau & Lietzau [2024] FedCFamC1A 94
Appeal from: Lietzau & Lietzau [2024] FCWA 11 Appeal number: NAA 38 of 2024 File number: PTW 1898 of 2017 Judgment of: AUSTIN, O'BRIEN & SCHONELL JJ Date of judgment: 6 June 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where 33 grounds of appeal are pleaded encompassing more than 200 separate propositions of error – Where the father asserts an apprehension of bias on part of the primary judge – Where the father previously applied for the disqualification of the primary judge on the basis of apprehended bias which application was dismissed – Where the dismissal of the disqualification application was a judgment from which an appeal could be independently brought and so no complaint about the validity of that decision could be agitated in this appeal, but the father nonetheless fails to elaborate how and why the primary judge erred by dismissing the disqualification application – Where the complaints of procedural unfairness fail – Where the complaints about interlocutory decisions made in advance of and during the trial by the primary judge fail – Where the complaints that the primary judge erred in the application of legal principles fail – Where there was no error of law or fact in the way the primary judge treated the evidence – Where the father’s superficial analysis of the factual findings made by the primary judge are rejected – Appeal dismissed – Application in an Appeal – Where the father was granted leave to rely upon his late-filed Summary of Argument of 65 pages – Costs – Where the mother filed a submitting notice and did not participate in the appeal – Where the Independent Children’s Lawyer did not seek costs – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60CC, 69ZX, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 26 and s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
J v Lieschke (1987) 162 CLR 447; [1987] HCA 4
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Louth v Diprose (1992) 175 CLR 621; [1992] HCA 61
McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8; [1934] 8 WCR 362
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6
Naparus & Frankham (2020) FLC 93-943; [2020] FamCAFC 32
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Tame v State of New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 157 Date of hearing: 20 May 2024 Place: Heard in Perth, delivered in Newcastle The Appellant: Litigant in person The Respondent: Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer: Ms Milton Solicitor for the Independent Children’s Lawyer: Baily Family Law ORDERS
NAA 38 of 2024
PTW 1898 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LIETZAU
Appellant
AND: MS LIETZAU
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AUSTIN, O'BRIEN & SCHONELL JJ
DATE OF ORDER:
6 JUNE 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 17 May 2024 is dismissed.
2.The Notice of Appeal filed 19 February 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lietzau & Lietzau has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, O’BRIEN & SCHONELL JJ
By a Notice of Appeal filed on 19 February 2024, the father appeals from parenting orders made under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the parties’ three children by a judge of the Family Court of Western Australia on 23 January 2024.
For the reasons which follow, the appeal is dismissed.
BACKGROUND
The children are now aged between 14 and 10 years.
The parties separated in July 2016 and the proceedings below were commenced in 2017.
In July 2017, interim orders were made with the parties’ consent allowing the children to spend supervised time with the father. The children experienced six supervised visits with the father over the following months before he volunteered to terminate the arrangement. The parties then consented to more interim orders in October 2017 discharging the prior orders. The children then did not see the father for four years.
On the mother’s application, which apparently enjoyed the father’s consent, orders were made in March 2021 to appoint a family therapist to help repair the children’s relationships with the father. However, after only four visits between July 2021 and September 2021, the family therapy was terminated at the children’s request “following their reaction to the father’s behaviour” (at [6]). The children have not seen the father since.
The proceedings eventually proceeded to trial in February 2023.
Despite the fracture of the children’s relationships with the father and them barely having seen him over the preceding six years, at the trial, the father sought orders that the children live with him and that he have sole parental responsibility for them (at [7]). The mother and the Independent Children’s Lawyer (“the ICL”) both proposed that the children remain living with the mother and that she have sole parental responsibility for them. They both proposed that the children spend time with the father as and when the children wished, subject to the mother’s agreement (at [7]).
Judgment was finally pronounced in January 2024 and, in the accompanying reasons, the ultimate conclusions of the primary judge were summarised thus:
8.For the reasons which follow, the Court finds that the father has engaged in significant (non-physical) family violence against the mother. He poses an unacceptable risk of emotional and psychological harm to the children. That risk of harm can only be ameliorated, in the circumstances of this case, by making orders substantially as sought by the mother and the [ICL]. Any communication between the father and the children must be subject to their wishes, and as agreed between the parties.
The orders were made in these terms:
(a)all previous orders were discharged (Order 1);
(b)declaration that the parenting orders would prevail over any existent family violence order (Order 2);
(c)the mother has sole parental responsibility for the children (Orders 4, 14, 15 and 16);
(d)the children live with the mother (Order 5);
(e)the children shall spend time and communicate with the father as they wish and as agreed between the parties (Order 6);
(f)orders about the manner in which the parties communicate and keep the father appraised of the children’s medical and scholastic progress (Orders 3, 4, 7, 8, 9 and 10);
(g)the parties’ conditional restraint from publishing the experts’ reports and from involving the children in their conflict (Orders 11, 12, 13 and 18);
(h)permission for the mother to take the children on international holidays (Order 17);
(i)direction for the orders to be explained to the children (Order 18);
(j)permission for the parties to provide a copy of the orders to the children’s schools, treating medical professionals and any government agency dealing with passports or child support (Order 19);
(k)miscellaneous procedural orders (Orders 20–26); and
(l)the dismissal of any and all outstanding applications (Order 27).
The father now appeals from all of those orders.
The mother filed a Submitting Notice on 7 March 2024 and did not participate in the appeal. The father seemed to think she thereby effectively conceded the appeal, as he submitted this in his Summary of Argument:
26.Having succeeded at trial, the [mother] has given written notice to this Court that she does not want to be heard at the hearing of, and will submit to any order the Court may make in, the appeal. In other words, she is so clearly conscious of being the beneficiary of a trial unfair and unjust to the [father] and the children, and also such a coward, that she is not game even to show up at that hearing.
The mother’s willingness to submit to the decision of the Court is not a concession of the appeal. It is just as likely she has been worn down by the father and cannot tolerate any further confrontation with him, which inference easily arises from his overtly critical assessment of her in his Summary of Argument in these terms:
22.…the evil persons involved in the dispute giving rise to this appeal include at least the following.
23. First, they include the [mother], a nearly 46-year-old [professional].
24.Since 2016, the [mother] has been deliberately harming the [father] as much as she possibly can, including by wrecking his marriage, destroying his family and making him homeless by deliberate deception, financially ruining him by selling the marital home (which was solely in her name) for an amount that wiped out more than all of the equity in it, and then lying to him about the extent of the financial ruin (she claimed that the proceeds of sale had covered the mortgage, but later admitted to her psychologist that there had been a substantial shortfall), separating him from his children against his and their wishes, kidnapping his children and unlawfully detaining them (alternatively otherwise committing “family violence” against them) for more than 4 years in an attempt to coerce him into entering into a “parenting plan” under duress (an attempt that was incapable in law of succeeding, because any agreement procured by coercion or duress is incapable in law of being a “parenting plan”), stealing money from him (in particular by claiming and receiving “child support” to which she was not lawfully entitled (because she was unlawfully detaining the children and therefore not a ‘carer’ of them)), blatantly lying to and/or misleading healthcare providers, expert witnesses, the [father] and the Court below about various matters, including in particular the true nature of her medical history (and especially by relying at interlocutory hearings of the Court below upon expert medical evidence that she must have known was misleading (and upon an expert medical witness whom she must have known was dishonestly giving the at best misleading evidence she was giving by affidavit)), and relying upon various acts of misconduct by her former lawyers, including provision of out-of-court assistance with the kidnapping, unconscionable procurement of a very substantial delay in the progress of the proceedings in the Court below by improper objections to the [father’s] inspecting of documents that had been produced in response to subpoenas (including subpoenas sought and obtained by the [father] himself), an improper claim for privilege over some of the documents that had been produced (a claim that was ultimately abandoned), improper procurement of an unfair trial of the proceedings (see below) and, worst of all, repeated incitement of the trial judge to refuse to comply with the law, including in particular decisions of the High Court that were clearly binding on him (and also this Court) (again, see below).
25.One of the key consequences of the [mother’s] campaign of harming the [father] has been that the relationship between the [father] and the children has been severely damaged. At trial, the [mother] succeeded in an improper attempt to take unfair and unjust advantage of the damage she herself had caused.
(Footnotes omitted) (As per the original)
The ICL opposed the appeal and, like the father, was granted leave to rely upon her late-filed Summary of Argument.
THE APPEAL
The appeal comprises 33 grounds of appeal pleaded over 28 type-written pages. Most grounds comprise sub-grounds and particulars, such that the grounds collectively encompass more than 200 separate propositions of error.
The father, who formerly practiced as a lawyer, described himself as “an experienced counsel, including before the High Court”, in which event he should know that such a vast array of alleged errors in an appeal may well indicate that no ground has any merit (Thorne v Kennedy (2017) 263 CLR 85 at [49]; Tame v State of New South Wales (2002) 211 CLR 317 at 345; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [8]). Bizarrely, there were more alleged errors in this appeal than there were paragraphs in the reasons for judgment.
We do not intend addressing every contention of error individually. Rather, we will deal with the grounds collectively as they can be conveniently grouped. Some raise complaints of bias and the denial of procedural fairness, which are liable to affect the integrity of the trial, so we will address them first, as required (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]). Others then deal with interlocutory decisions made both in advance of the trial and during the trial. The remainder concern alleged legal, evidentiary and factual errors, supposedly evident from the reasons for judgment.
By an Application in an Appeal filed on 17 May 2024, the father sought and was granted leave to rely upon his Summary of Argument of 65 pages, even though it was filed more than two weeks late and was more than four times longer than permitted by r 13.23(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The application is otherwise now formally dismissed.
INTEGRITY OF THE TRIAL
Apprehended bias
Ground 1 asserts an apprehension of the primary judge’s bias, the assessment of which complaint requires some contextual background.
The trial of the proceeding was vacated for a second time in August 2022. In October 2022, the trial was re-listed for hearing for the third time before the primary judge in February 2023 and procedural directions were made to ensure the parties’ readiness.
At the compliance hearing on 31 January 2023, the father’s oral application to vacate the trial was adjourned for hearing on the first day of trial on 9 February 2023. On that date, the father’s oral application was dismissed, for which the primary judge gave oral reasons. The trial then proceeded for several days until its conclusion on 15 February 2023, when judgment was reserved. Thereafter, whilst judgment was reserved, the father made multiple interlocutory applications.
In June 2023, the father applied for interim parenting orders, the mother’s restraint from prosecuting her application for a family violence order against him in a State court, and numerous other procedural orders. The application was later dismissed on 28 September 2023, for which reasons were published on 10 November 2023 (at [33]).
In October 2023, the father applied for reconsideration of the refusal to grant the anti-suit injunction against the mother, the discharge of the ICL, and costs against the State legal aid body. The application was partly dismissed on 10 November 2023, for which reasons were published, and the residue was dismissed on 4 December 2023 (at [34]–[35]).
In November 2023, the father applied for the disqualification of the primary judge for apprehended bias, the re-trial of the proceeding, or alternatively, an extension of time within which to file submissions. The application was dismissed on 4 December 2023, for which separate ex tempore reasons were published (at [35]–[36]).
It is apparent from those reasons that the father’s assertion of apprehended bias was premised upon allegations of the primary judge’s conduct of the hearing on 10 November 2023, which the father perceived to indicate his Honour’s pre-judgment to dismiss the interlocutory application he filed in October 2023.
It is worth pointing out here that, first, the father made no complaint about the manner in which the trial was conducted in February 2023, and secondly, he failed to make any disqualification application to the primary judge during the hearing on 10 November 2023, when his Honour was supposedly demonstrating such bias by conduct.
In an unexceptional application of legal principles, the primary judge concluded this in relation to the disqualification application:
19.The father has not identified any facts or matters which might be said to lead the Judge to decide the case other than on its legal and factual merits, nor is there any logical connection drawn between any facts or matters which might be said to lead the Judge to decide the case other than on its legal and factual merits, and the feared departure from the Judge deciding the case on its merits. A fair-minded lay observer would not consider that the apprehensions asserted by the father are reasonably based. The father’s application for recusal is dismissed.
The dismissal of the disqualification application on 4 December 2023 was a judgment from which an appeal independently lay (s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), though subject to the grant of leave to appeal from it (s 28(3)(f) of the FCFCA Act), but the father chose not to make such an application. Consequently, he cannot now complain about the validity of that separate decision in this appeal which is brought, as of right and without the need for the grant of leave, from a quite different judgment pronounced in January 2024 (s 26(1)(d)(i) of the FCFCA Act).
Nonetheless, the shortcomings of the father’s complaint can be easily exposed. Ground 1 contends the primary judge erred in dismissing the disqualification application by applying an incorrect legal test and by erring “in law and in fact” by reaching the conclusion extracted above. In support of the ground, the father submitted this in his Summary of Argument:
189.The first application was made by Application in a Case filed on 29 November 2023. It was supported by an affidavit filed the same day, and written submissions filed on 1 December 2023. The trial judge heard the application on 4 December 2023, and delivered an ex tempore judgment dismissing it.
190.The trial judge should have upheld the application on the basis contended for in the [father’s] written submissions in support of the application, on which the [father] now relies once again.
191.By that stage, it was obvious that the trial judge had committed a great many very serious errors in his conduct of the trial, involving, in particular, repeated obvious denials of procedural fairness to the [father], repeated refusals to comply with binding High Court authorities, and other misconduct raising serious questions as to his honesty and integrity (or lack thereof). These were not minor errors of a type that might reasonably be committed by an honest, conscientious judge, but very serious and inexcusable errors, going to the validity of the proceedings as a whole, and highly prejudicial to the [father] and the children.
192.Significantly, the counsel appearing on 4 December 2023 for the [mother] and the ICL did not challenge the [father’s] accusations of repeated dishonesty by the trial judge; rather, their responses to the application were, in essence, that the application should be dismissed because they, the opposing counsel, (allegedly) could not understand the application or the reasons for it.
193.The trial judge should have upheld the [father’s] first application for disqualification on the basis on which it was made. The reasons given by the trial judge in his ex tempore judgment dismissing that application are clearly erroneous for the reasons set out in ground 1 particular a.
194.The case to which that particular refers is Re JRL; ex parte CJL, a case not referred to either in submissions or at the hearing of the application, and in which Mason J was clearly commenting on an earlier test for ostensible bias than the easier-to-satisfy ‘double might’ test the trial judge was bound to apply.
(Footnotes omitted) (As per the original)
As can be seen, the father’s complaint is simply that the primary judge made the wrong decision, which bare proposition is of no value. The submissions fail to elaborate how and why the primary judge erred by dismissing the disqualification application.
On 11 December 2023, being a week after the disqualification application was dismissed, the father filed some written submissions. The primary judge had earlier made orders permitting him to file supplementary submissions by that date, but on condition the submissions were confined to the relevance of certain evidence earlier received for incorporation as part of the evidence in the parenting cause. While the title of the submissions heralded their relevance to only that singular issue, the content ventured much further and contained criticism of the manner in which the primary judge conducted the hearing on 4 December 2023 and the correctness of the decision made dismissing the disqualification application on that date.
First and foremost, as already noted, the remedy for dissatisfaction with the decision refusing disqualification on 4 December 2023 was an application for leave to appeal from the decision, which option the father did not take.
However, to the extent that the new submissions on 11 December 2023 hinted at a fresh complaint of apprehended bias by reason of the primary judge’s conduct of the hearing on 4 December 2023, rather than the conduct of the prior hearing on 10 November 2023, the subject of the dismissed application, no fresh disqualification application was actually made to the primary judge. The father thereby waived any complaint of apprehended bias arising from judicial conduct on 4 December 2023 (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). No such disqualification application can now be originally made in this appellate proceeding.
The father’s written submissions filed on 11 December 2023, in so far as they strayed beyond the terms by which they were confined by procedural order, had no proper juridical foundation and were null. Being filed in contravention of the terms of the primary judge’s orders, they were neither invited by his Honour nor filed in support of any pending application. Submissions in respect of the parenting cause had closed long before in March 2023 and all interlocutory applications filed by the father whilst judgment was still reserved in the parenting cause had been dismissed by 4 December 2023. Nor were the submissions accompanied by any fresh Application in a Case for the primary judge’s disqualification.
The father cannot escape the consequences of that reality by these submissions he made to the primary judge, asserting an “informal” disqualification application:
25.There is no prospect that the clearly very seriously erroneous reasoning on which the [primary judge] based his purported dismissal of the Father’s ostensible bias application would survive the scrutiny of an appeal court in an appeal against that purported dismissal. At the very least, the appeal court would need to consider the application afresh upon application of the current “might/might” test in a manner procedurally fair to the Father.
26.However, there is also no point in pursuing any such appeal, because the [primary judge’s] misconduct of the hearing on 4 December 2023, including his misconduct of the other application that he purported to dismiss at that hearing, and, further, his making of the injunction order of his own motion, is a strong basis for the Father to make a fresh application for disqualification for ostensible bias.
27.In particular, that misconduct, which must of course be viewed in context, was of the same general nature as the [primary judge’s] very serious pattern of misconduct relied upon by the Father in support of the ostensible bias application the [primary judge] purported to dismiss at that hearing.
28.Yet despite having made the submissions he has now made above about the [primary judge’s] misconduct at the hearing on 4 December 2023, the Father does not now intend to apply for leave to make another formal interlocutory application, whether for disqualification for ostensible bias or at all.
29.If the Father were to make any such application for leave, then that would involve his also making at least an implied admission that the Court was properly constituted when it purported to make the injunction order, and, as indicated above, the Father is not willing to make any express or implied admission as to the present constitution of the Court.
30.That being so, and bearing also in mind his earlier submission that it would be inappropriate for any judicial officer faced with an informal application for disqualification to rely upon any Rule of Court in refusing to consider the application, the Father hereby informally makes a fresh application for an order that the [primary judge] now disqualify himself for ostensible bias.
31.The basis of that fresh informal application is that the [primary judge’s] misconduct of the hearing on 4 December 2023, as described above, especially in the context of the [primary judge’s] “very serious” earlier misconduct relied upon by the Father in support of his formal application filed 29 November 2023, satisfies the “might/might” test the [primary judge] is bound to apply.
(Father’s Written Submissions filed 11 December 2023) (Emphasis added)
The father could not have it both ways. He had to elect whether or not he again formally moved the Court for the primary judge’s disqualification on different grounds from those rejected by the primary judge when dismissing the prior application on 4 December 2023. That formality was necessary to afford both the mother and the ICL the procedural fairness of an opportunity to respond to and contest any such formal application, particularly since they were awaiting the pronouncement of judgment by the primary judge in the substantive parenting cause. But the father deliberately elected not to make such an application.
The primary judge would have been entitled to ignore the written submissions filed by the father on 11 December 2023, in so far as they alleged bias, as being no more than a grizzle, but his Honour instead addressed them. The primary judge said this in the reasons for judgment published in January 2024 by way of “informal” answer to the “informal” disqualification application:
37.The father filed written submissions on 11 December 2023, addressing the relevance of the further evidence permitted to be taken into account by the trial Judge pursuant to the Orders made on 28 September 2023.
38.To the extent that the father seeks to agitate another “informal” application for recusal of the trial Judge in those submissions, the Court has considered the submissions. The “informal” application is devoid of merit for the following reasons:
(a)the applicable principles are summarised in the Court’s earlier decision;
(b)the mere fact that the Court has made several interlocutory rulings in this case that are inconsistent with the father's submissions does not activate the ''double might'' test;
(c)the father’s complaints about the Court making procedural orders in Chambers or otherwise without notice to the parties is entirely appropriate and permissible, having regard to the powers reposed in the Court by Division 12A of Part VII of the Act;
(d)there is no logical connection drawn between any facts or matters which might be said to lead the Judge to decide the case other than on its legal and factual merits, and the feared departure from the Judge deciding the case on its merits; and
(e)the question that the trial Judge is required to decide is what parenting orders should be made in the best interests of the children, in respect of the trial conducted between the parties in February 2023 (as supplemented by the evidence and submissions permitted to be relied upon following the Orders made on 28 September 2023).
(Footnotes omitted) (As per the original)
As no disqualification application was formally made, no order was ever made, nor needed to be made, by the primary judge to dismiss it. Order 27 did not fulfil that purpose because it only dismissed the parties’ residue parenting applications and “all outstanding interim proceedings”, though there were no outstanding interim proceedings. No Applications in a Case were still pending. Had any disqualification application been made, its disposition would have required another dismissal order, from which an appeal would have again separately lay, subject to the grant of leave to bring it.
In respect of the reasons rejecting his “informal” application, the father said this in his Summary of Argument:
195.On 11 December 2023, the [father] made written submissions contending in detail that the trial judge’s reasons for dismissing his first application for disqualification were clearly erroneous.
196. The [father] now repeats those submissions.
197.By the same written submissions, the [father] also made a second, informal, application for the trial judge to disqualify himself for ostensible bias, and brief written submissions in support of that second, informal, application.
198.The [father] now repeats those brief written submissions.
199.In his reasons for judgment, the trial judge rejected the second, informal, application, for the short reasons he gave.
200.Ground 1 b sets out detailed sub-particulars in response to the five specific reasons given by the trial judge for upholding the application. To a large extent, those sub-particulars are self-explanatory. The [father] briefly supplements them as follows:
i.in relation to sub-particulars ii and iii and Division 12A of Part VII of [the Act], the [father] repeats pars 84 and 85 above, and says that this is yet another instance of the trial judge egregiously failing or refusing to follow binding authority, in this case without even having given the parties or the ICL any opportunity to refer the trial judge to that authority;
ii.sub-particular v is directed to a statement by the trial judge in his reasons for decision to the effect that the [father] had elected not to apply for disqualification of the trial judge earlier than he did; but as the [father] had explained in his evidence in support of his first application for disqualification, the [father] had made that choice at that time not because he believed that an application for disqualification could be successfully made but had nevertheless decided not to make such an application, but, rather, because he considered that at that time there was an insufficient basis for making such an application and that such an application therefore would not succeed at that time.
201.The trial judge should have upheld the [father’s] second, informal, disqualification application on the basis on which it was made. In the circumstances, the trial judge erred in refusing to uphold that application.
(Footnotes omitted) (As per the original)
We reject the father’s nebulous propositions that the primary judge failed to follow binding authority, denied him procedural fairness in dealing with his submissions, erred in law or fact, or that his Honour was obliged to accede to his “informal” disqualification application. The primary judge correctly referred to binding authority, afforded the father the fairness of answering his gratuitous submissions, and made no identifiable error of law or fact.
Ground 1 fails.
Denial of procedural fairness before trial
Grounds 2(a), 2(b), 2(c), 2(d), 2(e) and 4(a) all allege the father was denied procedural fairness in advance of the trial, which complaints concern the decisions made by the primary judge on 7 October 2022, 7 February 2023 and 9 February 2023.
On 7 October 2022, the primary judge made an order under s 102NA(2) of the Act, thereby precluding the parties from cross-examining one another at the trial. As is usual, attached to the orders was an information pamphlet advising the parties about their consequent entitlement to representation by a legal aid lawyer.
In the reasons published for the order, the primary judge recited the submissions made by the father against the order (at [38]–[42]) and then said this:
37.The father accepts that the section 102NA(1)(a) requirement is satisfied. He disputes that the section 102NA(1)(b) requirement is satisfied. Section 102NA(1(b) provides:
there is an allegation of family violence between the examining party and the witness party.
…
50.The father’s affidavit filed 8 August 2022 confirms his intention to cross-examine the mother at trial. In these circumstances, section 102NA(1)(a) is satisfied. The mother is a witness party and section 102NA(3)(b)(i) is satisfied.
51.These are interim proceedings and the evidence of each party remains untested. The Court is unable to make factual findings where the evidence remains in dispute.
52.Whether the father’s use of legally available procedures in these proceedings and outside these proceedings constitute “family violence” will be a matter for determination at trial. The mother’s case in respect of family violence, referred to in the evidence specifically relied upon her by and earlier referred to, as well as in her written submissions, will also be issues for determination at trial. The Court is satisfied, in the words of section 102NA(1)(b), (underlining added) “there is an allegation of family violence between the examining party and the witness party.”
53.The evidence relied upon by the mother, taken at its highest comfortably falls within the definition of “family violence”. That such asserted family violence is non-physical is immaterial to its potential impact and severity.
54.The Court rejects the father’s submission that it should conclude that the mother’s allegations have “little, if any, merit” and do not assert “family violence of any great seriousness”. The merit of the allegations will be tested at trial. Similarly, the Court is not in a position to be able to make a finding about the father’s asserted basis for the mother’s reluctance to have the father directly cross-examine her.
55.The Court is not satisfied that the mother is required to depose in terms identical to the statutory language of section 4AB(1) of [the Act] in order to satisfy the Court that family violence is alleged. This question must be answered in the context of the entirety of the mother’s evidence relied upon for the purpose of this application, not simply her evidence that her “anxiety levels are becoming increased” as trial approaches and she contemplates the prospect of being directly questioned by the father (and herself directly questioning him).
56.The Court is satisfied that the mother’s evidence and her case, taken at its highest, is capable of being construed as threatening or other behaviour by the father that coerces or controls her or causes her to be fearful. Section 4AB(2)(d) refers to “repeated derogatory taunts” as comprising an example of behaviour that may constitute family violence. The father’s allegations about the mother’s mental health and fitness to parent the children may fall into this category, after the evidence is tested at trial.
57.The father’s allegations, which he has consistently maintained in these proceedings, and are partly quoted in these reasons, which have been consistently denied by the mother, are very serious. The Court is not in a position to make findings that they are established on the father’s case at this time.
58. For these reasons, the Court is satisfied that section 102NA(1)(b) is satisfied.
(Footnotes omitted) (As per the original)
As the conditions of s 102NA(1)(b) of the Act were satisfied, the primary judge turned to the discretion enlivened under s 102NA(1)(c) of the Act and said this:
59.In respect of the discretion to be exercised pursuant to section 102NA(1)(c)(iv), the Court has considered the submissions of the parties and the ICL and considers that the discretion should be exercised in favour of making an order activating the requirements of section 102NA(2), for the following reasons.
60.First, during the court of delivering his oral submissions, the Court observed the father when addressing different elements of the mother’s case at different times to be emotionally heightened, based upon his manner of breathing and his tone of voice. The Court could not discern whether this emotional heightening was based upon the father being upset, angry, a combination of the two, or for some other reason. At all times the father conducted himself entirely appropriately during the hearing and maintained his composure. However, the Court does ask itself the question, initially posed by the ICL in her oral submissions, as to how the father might respond when cross-examining the mother directly, having not communicated with her directly for several years.
61.Secondly, and partly informed by the first reason just given, the Court does not accept that the father will necessarily be disadvantaged if represented by a lawyer at trial. As canvassed with the father during the presentation of his oral submissions, representation by Counsel has benefits including Counsel exercising independent discretion or judgment in the conduct and management of a case. As well, a third-party professional’s impartial and disinterested assessment of the case is gained, which the Court considers to be especially beneficial to litigants in parenting proceedings. The father will be able to provide instructions and material to counsel for consideration.
62.Thirdly, given the proposed trial date, the father is likely to have sufficient time to make arrangements to secure suitable legal representation.
63.Fourthly, the Court is satisfied that, given the history of the proceedings since 2017 as disclosed in the evidence and submissions, the mother may be affected in her ability to give clear evidence if directly questioned by the father.
64.Fifthly, it is appropriate to recall section 43(1)(ca) of [the Act], which provides as follows:
A Court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to the need to ensure protection from family violence.
65.While each party’s allegations remain untested at this stage of the proceedings, the Court considers that the nature and seriousness of the cases outlined by each party for the purpose of this application justifies some weight being attached to this consideration.
66.Sixthly, for the reasons given below and the orders proposed to be made, in respect of dealing with the subpoena objections.
(Footnote omitted) (Emphasis in original)
The father’s complaint about the deprivation of procedural fairness is only that the primary judge insisted on making the s 102NA(2) order contrary to his wishes. However, the father’s submissions against the order were heard, but rejected, in which case there was no denial of procedural fairness. The father conceded this in his Summary of Argument:
102. The [mother] applied for the ban order on 29 July 2022.
103.The application was supported and opposed by affidavit evidence and submissions, heard on 29 August 2022, and upheld on 7 October 2022.
(Footnotes omitted)
On 7 February 2023, on the mother’s application, the primary judge struck out portions of the father’s trial affidavit. The orders were made in chambers, but the mother’s written objections and the father’s written responses were taken into account, so there was no deprivation of procedural fairness. This is not presently a complaint about evidentiary error.
On 9 February 2023, the primary judge dismissed the father’s oral application to vacate the trial. The central premise for the adjournment application was the father’s frustrated attempts to secure legal representation for the trial and so, bound by the s 102NA order, the mother could not be cross-examined by him.
The father’s submissions in the appeal take issue with the correctness of the finding made about the diligence of his pursuit of legal aid representation and the rejection of his argument about how the trial would be unfair if his lack of legal representation would thereby preclude his cross-examination of the mother, but they are not complaints about the denial of procedural fairness. Rather, they are complaints about the correctness of the decision refusing his adjournment application, which complaints are addressed under other grounds.
Nothing submitted by the father in the appeal demonstrates the adjournment refusal was vitiated by his deprivation of procedural fairness. His submissions in support of the application were heard, but rejected. The doctrine of procedural fairness is concerned only with the fairness of procedure, not the fairness of the decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). Axiomatically, no procedural unfairness can flow from a correctly made interlocutory decision, even though the dissatisfied party may regard the consequences as being disadvantageous.
Denial of procedural fairness during trial
Grounds 2(f), 2(g), 2(h) and 9 all allege the father was denied procedural fairness during the course of the trial, which complaints concern the interlocutory decisions made by the primary judge on 14 February 2023 and 15 February 2023.
On 14 February 2023, the primary judge revoked an earlier procedural order which enabled recourse by the parties and the ICL to certain documents identified by the father in his Case Outline Document. The revocation, on the penultimate day of trial, of the order made at the beginning of the trial precluded any further evidentiary use of the documents by the father. There had been no impediment to his use of the documents during the first few days of the trial, but he could not use them after the evidentiary ruling. The father’s complaint about the evidentiary rulings is considered under Grounds 8 and 9 but, since his submissions to the primary judge about the admissibility of the documents were heard, he was not denied procedural fairness by the rejection of his submissions.
The next complaint is that, on 15 February 2023, the primary judge “egregiously ambushed” the father during his final submissions with a factual proposition not earlier raised in the trial. The factual issue apparently concerned a text message sent by the mother, which supposedly bore upon the issue of family violence committed between the parties. The father’s Summary of Argument fails to clearly articulate the premise of the complaint, but he does floridly state this:
168.What is clear from the way the trial judge approached this issue is that the trial judge is an anarchist who has no respect for the rule of law, and who is therefore not a fit and proper person to be a judicial officer of any court.
169.Additionally, the trial judge’s approach to the issue was an implied repudiation of his judicial oath, which included a promise “… do right to all manner of people, according to law …”
(Footnotes omitted)
In oral submissions, the father confusingly vacillated between allegations about the rejection of his evidence of the mother’s family violence and the trespass upon his “common law rights” as a parent, but we are unable to discern how the debate of the factual issue during final submissions denied the father procedural fairness and we do not intend to try and divine the significance for ourselves. In any event, the father concedes that the primary judge gave him leave to file further written submissions after his oral submissions were concluded, which he subsequently did on 1 March 2023. It follows that the father was heard fulsomely in respect of the issue by which he is now troubled.
Denial of procedural fairness whilst judgment was reserved
Ground 12 alleges the father was denied procedural fairness by the primary judge failing to properly take into account the written submissions filed by him on 11 December 2023.
In relation to this ground, the father submitted this:
221.The [father’s] submissions filed 11 December 2023 made some important points about the [mother’s] misconduct since the trial in February 2023, particularly in commencing and pursuing separate proceedings in the Magistrates Court claiming relief that should could have claimed, but was not claiming, in the proceedings before the trial judge. Those submissions also made detailed comments about the complaints the [father] had made to the [professional body]. It was the making of those complaints, which the [mother] falsely claimed were complaints at which she was at the centre, that had prompted the [mother] to make her claim for relief in the Magistrates Court, a claim that should never have been made, and demonstrated yet again the [mother’s] lack of integrity.
222.However, and extraordinarily, the trial judge’s reasons for decision make no comment about either the submissions or about their contents. In that respect, the trial judge erred in failing even to consider detailed evidence and submissions highly relevant to the conduct and integrity of both of the persons who were seeking an order for sole parental responsibility.
(Footnote omitted)
The submissions are rejected. The primary judge dealt with each of the interlocutory applications filed by the father while judgment was reserved, giving separate reasons for their dismissal. As already explained under Ground 1, the written submissions filed by the father on 11 December 2023 had no proper foundation beyond addressing a singular evidentiary point and were little more than his gratuitous commentary on past events in the litigation.
Denial of procedural fairness evident from the reasons for judgment
Grounds 2(i), 14, 17, 30, 32 and 33 allege the father’s deprivation of procedural fairness at trial in February 2023 is revealed by the reasons for judgment delivered by the primary judge nearly 12 months later, in January 2024.
The grounds complain of a deprivation of procedural fairness because the primary judge wrongly “deprecated the [father’s] reliance upon his and his children’s common law rights” (Ground 2(i)), wrongly “largely” accepted the mother’s evidence (Ground 14), wrongly accepted the evidence of an expert witness (Ground 17), wrongly made findings which were contrary to the father’s interests (Grounds 30 and 32), and by failing to consider the father’s application for a family violence order against the mother (Ground 33).
Of course, none of those complaints is the manifestation of procedural unfairness, which doctrine is concerned only with the fairness of a hearing up until the time of its conclusion. The doctrine has no application thereafter (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 at [22]).
INTERLOCUTORY DECISIONS BEFORE TRIAL
Grounds 3, 4 and 5 attack interlocutory orders made in the lead up to the trial.
Ground 3 alleges the primary judge “erred in law and in fact” by making “programming orders” on 7 October 2022. The orders to which the father refers are the procedural directions setting the timetable by which the parties were required to file and serve documents in readiness for the trial starting in February 2023.
The father contends the orders “unfairly moved the goalposts” because they embodied an approach to the trial which was not consistent with the approach adopted by the judge who formerly case-managed the litigation. The father submitted this:
114.In mid-2022, [a named judge] retired, and was replaced as case manager by the trial judge.
…
116.Subsequently, the trial judge shifted the goal posts, by directing that each of the parties file a “single standalone” trial affidavit in place of the affidavits referred to by the earlier, appropriate, directions made by [a named judge].
117.There was no proper basis for that shift in the goal posts, and the trial judge gave absolutely no reasons for it. The mere fact that a newly appointed judge had replaced a retired judge was no basis for any such shift, particularly as the change in presiding judge was a matter completely outside the control of the parties.
118.As the [father] protested at the time, the shift in goal posts was going to inconvenience the [father] very substantially, but that protest was to no avail.
119.The [father] later sought to minimise that inconvenience (and the difficulty caused by the fading memories) by exhibiting the original trial affidavit to the fresh standalone trial affidavit. But even though exhibits to an affidavit form part of the affidavit (and are normally treated as such, eg in the appeal book for this appeal), the trial judge later clearly misinterpreted his direction as prohibiting the exhibiting of the earlier affidavit to the fresh affidavit as part of the latter, and thereby improperly and unjustly excluded a vast swathe of the [father’s] trial evidence. As a consequence, the [father] was denied a fair trial.
We do not accept the procedural directions made by the primary judge in October 2022 were vitiated by either a legal error or a factual error. They were made to govern the fair conduct of the trial according to the issues revealed by the parties’ respective proposals and in response to the primary judge’s obligation to hear and determine the dispute efficiently.
Grounds 4(b), 4(c), 4(d) and 4(e) allege the primary judge “erred in law and in fact” by making the order under s 102NA of the Act on 7 October 2022. As earlier explained, the father was afforded procedural fairness when the order was made, but this complaint challenges the correctness of the decision to make it.
The father contends the reasons given by the primary judge for the order were fallacious. We need not again recite the reasons delivered for the order. We observe only that they are not nullified by the father’s submissions, which hinge upon acceptance of his assertions that the mother’s application for the order was not bona fides and that the primary judge wrongly inverted the onus of proof. However, the father’s belief in the mother’s mala fides is not objective proof of the fact and neither party bears an onus of proof when the Court makes a discretionary decision under s 102NA(1)(c)(iv) of the Act. In any event, the father conceded in the appeal that the facts enlivening the discretion were proven on his own case.
Ground 5 alleges the primary judge “erred in law and in fact” by making the order on 7 February 2023 to strike out tranches of his trial affidavit. The mother applied for the evidence to be struck out and the primary judge took into account both her written objections and the father’s written responses.
The father is aggrieved by the primary judge’s failure to give comprehensive reasons for sustaining the objections, but reasons for the evidentiary rulings were unnecessary for two reasons. First, evidentiary rulings from which no appeal lies do not demand the delivery of reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 260 and 279; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). In any event, secondly, the bases upon which the objections were sustained were clear from the schedule appended to the order made on 7 February 2023. The schedule detailed the nature of the mother’s objections to parts of the father’s evidence and Order 1 indicated the objections were sustained for those reasons.
Regardless of the technical admissibility of the evidence, the primary judge was empowered to reject it (s 69ZX(2)(g) and s 69ZX(2)(h) of the Act). It bears repeating that the primary judge said this in the reasons for judgment in respect of the evidence struck out:
24.A separate oral application by the father to adjourn the trial, on the basis of the Court’s pre-trial rulings on the admissibility of parts of the father’s 987-page trial affidavit, was also dismissed for reasons given on the first morning of trial. The effect of the ruling was to permit the father to rely upon 94 pages of the trial affidavit. The Court is satisfied that the father was not prejudiced by not being permitted to rely upon the material which was struck out.
(Footnotes omitted)
We reject the father’s ultimate submission that:
143.As a consequence of the highly unsatisfactory manner in which the trial judge dealt with the [mother’s] objections, the [father] was denied a fair trial.
INTERLOCUTORY DECISIONS DURING TRIAL
Grounds 6, 7, 8, 9, 10 and 11 all concern interlocutory decisions either made or not made by the primary judge during the course of the trial.
Confoundingly, the grounds all allege such decisions are vitiated because the primary judge “erred in law and in fact”, but neither the grounds, nor the father’s Summary of Argument, nor his oral submissions satisfactorily explicate the errors of law or fact supposedly made by his Honour. The complaints amount to no more than the father’s contentions that the decisions were wrongly made according to his perception and version of factual events.
Grounds 6 and 7 attack the primary judge’s decision on 9 February 2023 to refuse the father’s application to adjourn the trial. It is asserted the trial should have been adjourned until the father had successfully secured legal representation via the grant of legal aid (Ground 6) and to enable him to file and serve a supplementary affidavit to replace the evidence struck out some days before (Ground 7), but alternatively, if the trial was to proceed then the s 102NA order should have been revoked (Ground 6).
On 9 February 2023, the primary judge dismissed the father’s oral application to vacate the trial. As already noted, the central premise for the adjournment application was the father being bound by the s 102NA order preventing his personal cross-examination of the mother and his unsuccessful attempts over preceding months to secure legal representation for the trial. About a week beforehand, when the father foreshadowed the adjournment application for that reason, the primary judge ordered him to file an affidavit deposing to his attempts to secure legal representation, which he duly did.
In the oral reasons delivered to explain the decision to refuse the adjournment, the primary judge referred to the father’s “sporadic” attempts to obtain legal representation over preceding months and his lack of diligence in that respect, the children’s expressed distress about the ongoing litigation, the mother’s emotional distress about the ongoing litigation, the fact the trial had already been vacated twice before, and the rejection of the father’s submission that his inability to cross-examine the mother without a lawyer would deny him procedural fairness. We do not accept the father’s submission that those reasons were “feeble excuses”.
The father’s submissions in the appeal take issue with the correctness of the finding made about the lack of his diligent pursuit of legal aid representation, but that finding was open on the evidence adduced by the father, which evidence was not challenged. The s 102NA order was made three months before the trial started and the father was given an information pamphlet when the order was first made about his need to immediately approach the State legal aid agency to apply for legal representation. The father deposed this in his affidavit:
14.I also felt that it would be inappropriate to apply for legal aid immediately, because the LAC [Legal Aid Commission] would probably not receive the banning order immediately.
…
17.At some point at around that time, I telephoned the LAC office in an attempt to make an application over the phone, but gave up after waiting in the “queue” for a long time.
18.The next time I was due to visit the city was on Tuesday 18 October 2022, when I went to the Family Court to inspect documents that I had not been given permission to inspect until the Court made the banning order. That was the earliest day the relevant documents could be made available for me to inspect.
19.After finishing that inspection, I went to the LAC office and spoke over the counter with an officer of the LAC. I explained that a banning order had been made, and gave the officer a printout of the banning order. I also said that I wanted to apply for legal aid for the hearing, but wanted a lawyer only to carry out the cross-examination.
…
23.The officer also gave me an Information Sheet, which included the statement “Access to the Scheme will not be means or merits tested.” In light of that statement, I do not see the task of filling in and returning the Form as urgent.
…
26.I returned the Form on Tuesday 8 November 2022, when I went to the city to carry out another document inspection at the Family Court.
…
29.In early December 2022, a number of people in the household in which I am staying became infected with Covid-19. Although I did not test positive myself, I was not feeling well, and generally stayed at home for a couple of weeks or so.
30.I did not try to call the LAC during that period, because I had previously been unsuccessful in getting through on the telephone.
31.On 21 December 2022, I went to the city to attend mediation of my SAT dispute with the [professional body], and reached an ‘in principle’ settlement of the dispute.
32.After the mediation, I went to the LAC office and enquired over the counter as to the progress of my application for legal aid.
33.The officer with whom I spoke told me that no decision had been made yet, but that someone would “definitely be present at the trial to cross-examine” [the mother].
34.The officer also sent an electronic message to the “assessor” to remind the “assessor” that a decision and arrangements still needed to be made.
35.I did not make any further enquiries between then and mid-January 2023, as I know that the legal profession generally shuts down for two weeks over Christmas.
(Father’s Affidavit filed 6 February 2023) (Emphasis added)
The father confirmed he received notification of his grant of legal aid on 31 January 2023, a little over a week before the trial was due to start, but there was no evidence before the primary judge as to why the father was not then represented by a lawyer at the scheduled start of the trial on 9 February 2023. In the appeal, the father resiled from his evidence and alleged he was not granted legal aid at all. Given the father’s admissions about his languid dealings with the State legal aid agency, we are far from convinced the evidence foreclosed the primary judge’s finding about the father’s lack of diligence.
The father also takes issue with the rejection of his argument about the trial being unfair if his lack of legal representation would thereby preclude the mother’s cross-examination, but the primary judge was not obliged to accept his submission. The mother and the ICL both submitted to the contrary. The facts and circumstances before the primary judge portended the father’s intended cross-examination of the mother ranging far beyond the issues in genuine dispute, which inference is only strengthened by the father’s submission in the appeal that he alleged the mother was “a dishonest, highly unsatisfactory witness”.
The father’s submissions in the appeal were encapsulated thus in his Summary of Argument:
73.The trial judge should have adjourned the trial accordingly, until either the LAC provided a lawyer sufficiently prepared to carry out a competent cross examination, or the ban order was revoked and the [father] was in a position to cross examine the [mother] himself in some other way, eg in accordance with the procedure set out in the Restraining Orders Act 1997 (WA), section 44C.
(Footnote omitted)
The father did not formally apply for the revocation of the s 102NA order once the adjournment application was refused, so the primary judge had no need to revisit the order.
The father’s reliance upon J v Lieschke (1987) 162 CLR 447 as binding authority for the proposition that he had an unconditional right to cross-examine the mother is misplaced. That decision establishes only that parents of children have the right to be heard in proceedings relating to their children. The case concerned State child welfare jurisdiction but, by analogy, the principle applies to federal proceedings under Pt VII of the Act, subject to modification by express federal statutory provisions which govern practice and procedure. Here, the father did participate in the proceedings before the primary judge, and he was heard.
Contrary to the father’s submissions, he had no right to cross-examine the mother. He only had a right to a fair trial, which is not the same thing (Naparus & Frankham (2020) FLC 93-943 at [17]–[20]). The primary judge was empowered to disallow the mother’s cross-examination even if the father was legally represented (s 69ZX(2)(i) of the Act), though such an order would admittedly be highly unusual. The point is, however, that the preclusion of one party from cross-examining another is not necessarily a deprivation of procedural fairness. The doctrine of procedural fairness requires that the trial be conducted in a way which is fair to all, not just to the party complaining of unfairness.
In this instance, the proceedings had been afoot for six years, the trial had already been twice vacated, the father had three months within which to arrange his legal representation with a grant of legal aid, the children and the mother were all distressed by the ongoing litigation and wanted it finished, and the father’s parenting proposal to reverse the children’s residence in the face of his lengthy estrangement from the children seemed quite unrealistic.
The father additionally wanted a reprieve to prepare and file a supplementary affidavit to cure the deficits in the evidence he perceived existed as a result of the mother’s successful application to strike out tranches of his trial affidavit. In relation to that point, as we have already recited, the primary judge said this in the reasons for judgment:
24.A separate oral application by the father to adjourn the trial, on the basis of the Court’s pre-trial rulings on the admissibility of parts of the father’s 987-page trial affidavit, was also dismissed for reasons given on the first morning of trial. The effect of the ruling was to permit the father to rely upon 94 pages of the trial affidavit. The Court is satisfied that the father was not prejudiced by not being permitted to rely upon the material which was struck out.
(Footnotes omitted)
In relation to that issue, the father said this in his Summary of Argument:
132.In order to establish with reasonable clarity that, as the [father] contends, all of the objections were without merit, it would be helpful for the [father] to make some detailed oral submissions at the hearing of this appeal about a small selection of them. In that regard, the [father] repeats the submission he made to that effect in his response in the Court below to the objections.
133.Subject to any view that this Court might express at the hearing to the contrary, the [father] therefore intends to make some oral submissions along those lines.
…
143.As a consequence of the highly unsatisfactory manner in which the trial judge dealt with the [mother’s] objections, the [father] was denied a fair trial.
(Footnote omitted)
The father elected not to make any further oral submissions on that point but, even if he had, he would have been stopped because this ground of appeal concerns the validity of the decision to press ahead with the trial and does not concern the validity of the evidentiary decision to strike out parts of his affidavit. Nothing submitted by the father in the appeal demonstrates legal or factual error in the decision to proceed with the trial without giving him permission to file and serve a supplementary affidavit.
Grounds 8 and 9 attack the primary judge’s decisions in relation to the father’s reliance upon certain documents referred to in his Case Outline Document. The primary judge initially allowed the father to rely upon the documents (decision made on 10 February 2023) but then recanted that ruling (decision made on 14 February 2023).
The primary judge’s ruling on the admissibility of the sheaf of documents upon which the father wanted to rely was explained this way in the reasons for judgment:
27.During the trial, the Court made further orders controlling the material which the father was given permission to rely upon, in particular subpoenaed documents. Reasons for revoking the father’s permission to rely upon particular subpoenaed documents are given in the next section of this judgment.
…
29.In his Papers for the Judicial Officer, the father included a section entitled, “Documents produced in response to subpoenas (to be tendered by the [f]ather)”. The following 17 categories of documents were identified (albeit Items 6 and 8 were not sought to be relied upon):
[documents identified]
30.In light of the submissions that the father made about why these documents were relevant, and in light of the evidence heard by the Court at that point of the proceedings, the Court formed the view that the documents were not shown to be either relevant or sufficiently relevant, or probative, to justify their reception into evidence, for the following reasons:
(a)the father provided no cogent reasons as to why that material was sufficiently relevant to the determination of the current parenting orders which would now be in the best interests of the children;
(b)subject to the specific observations which follow, the historicity of the documents;
(c)even if the school reports for [the middle child] from Semester One in 2016 until 2021 [when the child was five to 10 years of age] show a decline in her performance (as contended by the father), this does not materially impact on the terms of the parenting orders which are currently in her best interests;
(d)even if the medical notes do not disclose the mother reporting the extent of her alcohol use to treating practitioners in and before 2018 (as contended by the father), the mother gave evidence about this use at trial;
(e)none of the medical practitioners (including [a psychiatrist]) were subpoenaed to give evidence about their notes by the father, and the weight to be attached to the notes would be affected by such absence, especially given the following concession by the father;
(f)the father acknowledged that the material that he seeks to rely upon “is so vague that it would not be of much assistance to them” [the medical professionals who have given evidence]; and
(g)the [mother’s] “honesty and integrity”, whatever the father submits about it, does not undermine the observations made by [the psychologist] and [the family consultant] about the children.
31.At the time that this ruling was made, the parties had been cross-examined (in the case of the mother, only by the [ICL]) and [the expert psychiatrist and the psychologist] had been cross-examined. Family Consultant [name] gave his oral evidence and was cross-examined immediately after this ruling was made. Family Consultant [name] was the final witness required for cross-examination in this case.
(Footnotes omitted) (As per the original)
The grounds contend the primary judge “erred in law and in fact” by failing to make any decision about whether the father could do anything other than “rely” upon the subject documents (Ground 8) and by then subsequently revoking the earlier order (Ground 9).
The first order on 10 February 2023 was made in these terms:
1.Until further order, there be leave to the parties and the [ICL] to have reference to the documents identified in items at 1 to 17 at pages 28 to 30 of the [father’s], Papers for the Judicial Officer, save for items 6 and 8.
The second order on 14 February 2023 was made in these terms:
1. Paragraph 1 of the orders made on 10 February 2023 be discharged.
The essential complaint made by the father is that he was unable to cross-examine witnesses on the subject documents because the primary judge did not make the admissibility ruling until the penultimate day of trial, but the submission is misconceived. No such restriction was imposed by the orders made by the primary judge. Nor were we taken to any portion of the transcript to verify the primary judge imposed any such restriction when we asked for such assistance. In fact, as this excerpt of the transcript reveals, the father contrarily told the primary judge he did not intend to cross-examine any witnesses on the documents:
HIS HONOUR: … Are you proposing to cross-examine any of the professional witnesses about any of the material listed on pages 28 to 30?
[THE FATHER]: I don’t think so. Not at this stage.
(Transcript 9 February 2023, p.51 lines 15–19)
So far as we can discern, the father was free to cross-examine witnesses with the documents if he wished. After the second ruling was made, he was unable to tender the documents because the primary judge found they were either irrelevant to any fact in issue or insufficiently probative to warrant their admission in evidence. The primary judge was empowered to make such a ruling (ss 69ZX(2)(g), 69ZX(2)(h) and 69ZX(2)(i) of the Act), even if the documents were relevant and capable of carrying some probative weight.
The father conceded in the appeal that he made no formal application to the Court for interim orders to be made enabling the children to spend time with him after he consensually discharged the supervised time orders in October 2017. Yet, despite voluntarily acceding to the children living with the mother for more than six years between the marital separation in July 2016 and the trial in February 2023, during which time he must have axiomatically accepted the mother was a sufficiently capable parent, he applied at the trial for orders reversing their residence. Somewhat surprisingly, the father described his case at trial as follows:
144.Right from the beginning, it was an important part of the [father’s] case that the [mother] was afflicted with a serious mental illness that had never been properly diagnosed or treated. By the time the trial took place, the [father] was also contending that that was because, inter alia, the [mother] had persistently and dishonestly misled healthcare providers, the [father], and the Court, over a long period, as to the true nature of her relevant medical history.
(Emphasis in original)
The documents which are the subject of these grounds were chiefly medical records pertaining to the mother. The supposed significance of the documents to the resolution of the parenting dispute was articulated this way by the father in the appeal:
159. …
i. …
ii.for example, no reasonable father, and therefore no reasonable Family Court, would feel comfortable about children being raised by a shamelessly dishonest person who has taken extraordinary steps to evade (as opposed to avoid) proper diagnosis of a serious mental illness that may well be borderline personality disorder (which, according to its Wikipedia article, is “… characterized by a pervasive, long-term pattern of significant interpersonal relationship instability …”, and which, in the [mother’s] case, would be likely to include instability in her relationship with the children, particularly as they grow older and more challenging)…
(Emphasis in original)
On the same issue, the father had this exchange with the primary judge at the trial:
HIS HONOUR: Just let me be clear, [the father], because it’s very apparent to the court that you’ve read a very vast amount of case law in your career, and for the purpose of these proceedings. So the M v M decision in 1998 was a decision on unacceptable risk of harm by the High Court. Do I understand your contention to be that the dishonesty of [the mother] is a matter relevant to her being an unacceptable risk of harm to the children. Is that your submission?
[THE FATHER]: Yes.
HIS HONOUR: That’s your submission?
[THE FATHER]: Yes.
(Transcript 9 February 2023, p.32 lines 30–44)
The significance of the documents to the orders which embody the judgment is not so obvious to us. It is not readily apparent how proof of the mother’s dishonesty would disqualify her from fulfilling her parental role as the children’s long-term residential carer. Nor does it follow that parents who experience mental ill health are incapable of caring for children. We are not satisfied the father demonstrated in the appeal that the reasons given by the primary judge for the rejection of the documents (at [30]) reveal either an error of law or an error of fact.
As the primary judge told the father at the very beginning of the trial:
HIS HONOUR: …This is not going to be an inquisition into the historical mental health of [the mother], this trial, [father]. To the extent that you have a view that that is a highly relevant matter for trial, you are mistaken, and the evidence in this case that’s relevant is an assessment now of [the mother’s] mental health in the context of the current evidence. That is relevant. So the other evidence is not relevant. This has been flagged.
…
HIS HONOUR: … Firstly, dealing with pages 6 and 7 of the minute of orders that you’re seeking, the court will consider any relevant and admissible evidence of the mother’s current mental health, but only to the extent that it’s relevant to these proceedings.
…
HIS HONOUR: Only to the extent that it’s relevant. Now, my reading of the evidence, [father], is there is no mental health issue in relation to [the mother]. …
(Transcript 9 February 2023, p.19 lines 7–14; p.31 lines 11–15 and lines 19–21)
Ground 10 alleges the primary judge “erred in law and in fact” by rejecting the father’s contention that the mother and her lawyers complicitly “kidnapped” the children and attempted to “coerce” his agreement to a parenting plan. The mere recitation of the ground exposes its absurdity, but the father explained it this way in his Summary of Argument:
170.The [father] now turns to ground 10, which challenges the substantive untenability of the trial judge’s reasoning for refusing to hold that the [mother] engaged in very serious “family violence” towards the [father] and the children.
171.At trial, the [father] contended that the main reason the [father] should have sole parental responsibility is that the [mother] had been engaged in very severe “family violence” towards the [father] and the children since February 2017. …
…
173.The trial judge chose to adopt a different approach. Specifically, he chose to wait until after the [father] had completed his evidence and started making his oral closing submission, and then improperly ambush the [father] with a brief, confusing, early manifestation of the reasons he ultimately gave for rejecting the [father’s] ‘family violence by the [mother’s]’ contention.
…
175.Subsequently, by leave of the trial judge, the [father] filed a written submission vigorously attacking the ambush on both procedural and substantive grounds. …
…
177.The [father] now repeats his written and oral submission at trial to the effect that the [mother] engaged in very serious “family violence” against him, and the children. He also repeats his written submissions attacking the ambush. Particulars a to c of Ground 10 set out detailed responses to the specific reasons given by the trial judge for rejecting that submission. …
(Footnotes omitted)
Inferentially, the alleged “family violence” which the father attributes to the mother was her suggestion that they should mediate their dispute and try to agree upon a parenting plan without the need for a defended hearing. It is a novel proposition to assert such a sensible suggestion was violent, notwithstanding the width of the definition of “family violence” (s 4AB of the Act). The “ambush” to which the father refers is apparently the primary judge’s engagement of him in Socratic debate during final submissions about the quality of the evidence he adduced to prove the mother’s alleged “family violence”.
This excerpt from the transcript, part of which the father expressly relied upon, pertinently demonstrates the primary judge’s disdain for the father’s position:
[THE FATHER]: …That, in my submission, is the key part of it. It’s saying, “You have to do these things or I won’t let you see the kids again”. Now, my submission is that that statement puts me under and did put me under duress.
Now, the general common law rule or the general law rule, if you want to refer to it – it doesn’t really matter – is that if you enter into an agreement under duress it’s voidable but not void. It’s valid to start out with unless a court decides to declare it void on the basis of the duress. That’s the common law position. As far as parenting plans are concerned, the relevant provision in the Act is very different, and it’s section 63C(1)(a), and what that says is that an agreement is not a parenting plan for the purpose of this Act unless it’s made free from any threat, duress or coercion.
So my position is that the effect of what she wrote in her SMS was to put me under duress. It was an attempt to – by putting me under duress, to coerce me into entering into a parenting plan.
HIS HONOUR: Did you ever go to a mediation?
[THE FATHER]: No.
HIS HONOUR: No.
[THE FATHER]: And I refused to go to a mediation precisely for that reason. My position as articulated at the time, referring to the section by number, was that the message put me under duress. There was no point in attending mediation because, as a consequence of the duress, I could not enter into an agreement that would fit the definition of “parenting plan”.
HIS HONOUR: Did it occur to you that you would go to the mediation, see if you could reach an agreement, and if you couldn’t you would apply to the court for an interim order?
[THE FATHER]: Well, I didn’t have a lawyer, but what I knew was that I couldn’t enter into a parenting plan and - - -
HIS HONOUR: You appear to be very legally skilled, [father], is the observation I would make.
[THE FATHER]: Well, I know, but – I understand, but the point was that it put me under duress and so I couldn’t enter into a parenting plan and I wrote to them and I told them that and their reaction was to procure another lawyer to threaten to confer a benefit on [the mother].
HIS HONOUR: [Father], I’m going to interrupt you here. These are very legally technical points which really have nothing to do with the welfare of your children.
[THE FATHER]: I understand.
HIS HONOUR: The simple human reaction here is go to a mediation, see if you can reach an agreement. If you feel you’re under duress at the mediation you won’t enter into an agreement. You will then go to court and make an application to spend time with your children. The court will make a decision. Now, focusing on the common law of duress and so forth and refusing to go to mediations - - -
[THE FATHER]: Well, my - - -
HIS HONOUR: - - - the court may take the view that says more about you than about the mother, [father].
(Transcript 15 February 2023, p.13 line 17 to p.14 line 34)
Simply put, the children were not “kidnapped” by the mother. The father voluntarily left them in her care upon separation and they thereafter lived with her without legal challenge. Interim orders were later made in July 2017, constricting the children to spending only supervised time with the father, but he consensually discharged those orders only a few months later in October 2017. Thereafter, no order regulated the children’s interaction with the father until judgment was finally pronounced in January 2024. The mother’s suggestion for the parties to attend mediation was a proposal which the father was free to reject, as he did. He was not “coerced”. The primary judge was not satisfied the mother had engaged in “family violence” by “bombarding” the father with distressing or menacing emails (at [162]).
Ground 11 alleges the primary judge “erred in law and in fact” by making an order on 9 February 2023 to summarily dismiss some aspects of the relief he sought.
The order which is the subject of this complaint was made in these terms:
1.In relation to the [mother’s] oral application to summarily dismiss aspects of the final orders sought by the [father] in his Minute of Final Orders Sought at trial, filed 3 August 2022,
(a)Paragraph 2 of the orders sought be struck out, save for the words, “The children live with the father.”;
(b)Paragraph 3 of the orders sought be struck out;
(c)Paragraph 4 of the orders sought be struck out;
(d)In paragraph 22 of the orders sought the words “as if the parties had not separated” be struck out; and
(e)Pages 6 and 7 of the orders sought be struck out.
The primary judge gave ex tempore oral reasons for the order, but said this of the order in the reasons for judgment delivered in January 2024:
25.The mother’s oral application to dismiss aspects of the Minute of Final Orders sought by the father was also determined on the first morning of trial and was partially successful.
(Footnote omitted)
The proposed parenting orders which were, in part, summarily dismissed by that order were these:
2.The children live with the father, in the house in [location] currently rented by the mother, at the mother’s sole expense as to rent and outgoings, or, in the event that the lease on that house or any successor house to that house (without limitation as to the number of any such successor houses that might exist) comes to an end for any reason, in a successor house of no lesser quality than, and in a location similar to, that of the house succeeded by the successor house, to be rented by the mother at her sole expense as to rent and outgoings.
3.The mother reside somewhere else, at her own expense, subject to order 19.
4.For as long as [the eldest child] continues to attend [named school], the mother be solely responsible for her school fees at that school.
…
22.That each party authorise the school authorities, teachers or any other person having responsibility for the children’s education or other curricular activity to communicate directly with each party as if the parties had not separated and to record each party as a person to be notified in cases of emergency and provide to each party copies of school reports and other reports relevant to the children’s education and the provision of a sealed copy of this order is deemed sufficient authority for the educational facility.
(Father’s proposed Minute of Final Orders dated 3 August 2022)
The supplementary orders proposed by the father which were summarily dismissed were, in essence: an order directing the Prothonotary of the State Supreme Court to refer the mother’s lawyers and various other medical professionals to the Director of Public Prosecutions, presumably for prosecution with criminal offences; and orders referring the mother’s lawyers and medical professionals to their respective professional regulatory bodies for professional disciplinary proceedings and to the police for prospective prosecution.
Despite the father’s contentions in the appeal to the contrary, the primary judge had no jurisdiction or power to make orders binding State or federal authorities to investigate, discipline or prosecute any lawyers or medical practitioners. Nothing stopped or stops the father from referring those persons to such authorities himself. He lost nothing by the primary judge’s refusal to make orders in the terms he sought.
As to the proposed parenting orders, the primary judge had no power under Pt VII of the Act to make orders:
(a)directing what homes the parties would inhabit and who would pay the rent and other expenses (proposed Orders 2 and 3);
(b)directing who would pay for school fees (proposed Order 4); or
(c)pretending the parties were not separated (proposed Order 22)
There was no legal or factual error by the primary judge summarily dismissing those orders, either in whole or in part. In any event, the complaint is immaterial. The primary judge conducted the proceeding on the basis that the father’s core application was for him to have sole parental responsibility for the children, for the children to live with him, and for them to spend time with the mother (at [7] and [54]).
ALLEGED LEGAL ERRORS
Although styled as errors “in law and in fact”, the meaning of which is quite unclear, Grounds 25, 29, 31, 32 and 33 all allege the primary judge erred in the application of legal principle.
It is contended the primary judge failed to comply with s 60CA of the Act, which is the embodiment of the principle that the child’s best interests must be regarded as the paramount consideration when parenting orders are made (Grounds 25, 29, 31 and 32), and furthermore failed to exercise jurisdiction (Ground 33).
As to the alleged failure to comply with the paramountcy principle, it is asserted the breach is evident from these things: finding that the children would suffer psychological harm if the orders sought by the father were made (Ground 29); refusing to order that any communication between the parties be monitored (Ground 31); and by ordering that the mother should have sole parental responsibility, the children should live with her, and the children should spend time and communicate with the father as they wish, but subject to the mother’s agreement (Grounds 25 and 32).
Self-evidently, Ground 29 must fail. The relevant finding about the risk of harm posed by the father was entirely factual and unrelated to the paramountcy principle. That finding, and others like it, would only influence the ultimate conclusion about how the children’s interests would be best served. The primary judge found the mother did not pose an unacceptable risk of harm to the children, rejecting the father’s submissions to the contrary (at [164]–[165]). Conversely, the primary judge found the father posed “an unacceptable risk of emotional and psychological harm” to the children (at [166]) which could only be ameliorated by making the children’s interaction with him subject to their wishes and the mother’s agreement (at [167]–[169]). In determining what orders should be made to promote the children’s best interests in accordance with the paramountcy principle, the primary judge was required to give primacy to the need to protect them from the risk of harm (pursuant to s 60CC(2)(b) and s 60CC(2A), which have since been repealed but replaced by counterpart provisions).
The complaints within Grounds 25 and 32 are answered by observing that the orders made by the primary judge were crafted to reflect the findings made as to the only way the risk of harm posed by the father to the children could be satisfactorily attenuated (at [167]–[169]). The alternative would be to make no order at all regulating the manner in which the children could spend time and communicate with the father, leaving those decisions entirely to the mother as an incident of her sole parental responsibility for the children.
Ground 31 must also fail. The father sought various orders to regulate the manner in which the parties would communicate electronically, such that their communications would be “viewable” by the lawyers, the ICL, the single expert, the family consultant, and the primary judge, but those proposed orders were premised upon other orders being made for the children to live with him and for him to have sole parental responsibility for them. None of the father’s proposed orders were made because the primary judge found they were contrary to the children’s best interests. Lest it not be clear to the father, the orders pronounced by the primary judge finalised the cause between the parties and exhausted jurisdiction under Pt VII of the Act. Neither the primary judge, the lawyers, the ICL, nor the witnesses would have any interest in, let alone obligation to, continue monitoring the electronic communications between the parties for the remainder of the children’s minority. The Court makes decisions to determine justiciable disputes. It does not manage and supervise the parties’ lives beyond the litigation.
Ground 33 asserts the primary judge “erred in law and in fact” by failing to “mention, properly consider and uphold” his application for a family violence order to be made against the mother to protect him and the children. It is easily rejected. There was no evidentiary foundation for an injunction against the mother to protect the father because the primary judge was not satisfied she had committed family violence against him (at [162]). Nor was there any evidentiary foundation for an injunction against the mother to protect the children because the primary judge found she posed no unacceptable risk of harm to them and their best interests warranted them living with her.
ALLEGED EVIDENTIARY ERRORS
Grounds 13, 14, 15, 16, 17, 18 and 19 each allege errors “in law and in fact”, but they comprise complaints about the primary judge’s treatment of the evidence.
Ground 13 challenges the primary judge’s rejection of the father’s argument about the application of the principle enunciated in Jones v Dunkel (1959) 101 CLR 298 insofar as it concerned the mother’s failure to call evidence from her two former psychiatrists. In 2017, at a much earlier point in the litigation, the mother filed affidavits by those psychiatrists, but she elected not to call them as witnesses at trial. The primary judge said this in respect of the issue:
41.The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may, in appropriate circumstances, support an inference that the uncalled evidence would not have assisted that party's case. The failure to call a witness may also permit the Court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in position to cast light on whether the inference should be drawn.
42.The Court declines to draw any such inference from the mother’s failure to call any of these witnesses. The Court infers that the mother’s explanation for not calling these witnesses is that they are not relevant to the resolution of the key issues in the proceedings. The Court agrees.
43.The mother’s failure to call any of these witnesses does not strengthen any inferences that the father may seek to draw, in light of the evidence which the Court accepts in these proceedings. A litigant has no duty to call particular witnesses, or to procure that any witnesses called by that litigant are asked particular questions. A litigant who enters the witness box, on the other hand, is under a positive duty to tell the whole truth in answer to the questions asked.
44.The father raises as an issue in these proceedings whether the affidavit of [named psychiatrist] made on 12 May 2017 be held to be inadmissible as evidence in support of the opinion it expresses. This issue does not arise at trial because the mother does not rely upon this affidavit. The father relies upon the affidavit not for its truth value, but to discredit the mother's case.
45.The father also raises as an issue in these proceedings whether [named psychiatrist] is a dishonest witness. This issue also does not arise at trial, because the mother does not rely upon [named psychiatrist] as a witness. The father relies upon the affidavit of [named psychiatrist] filed on 22 May 2017 not for its truth value, but to discredit the mother’s case.
46.The Court does not accept that affidavits filed by two psychiatrists in 2017, not relied upon by the mother, relevantly “discredit” the mother’s case in respect of the parenting orders that she is seeking.
47.Given the evidence before the Court for consideration, and the findings that the Court intends to make, the Court does not consider that making findings about the issues raised by the father regarding [the two named psychiatrists] is necessary to make orders in the best interests of the children.
(Footnotes omitted)
In the appeal, the father submitted this in respect of the primary judge’s reasons:
223.The trial judge’s comments about the [father’s] reliance upon Jones v Dunkel, especially in relation to the affidavits of [the two named psychiatrists] display a disturbing lack of understanding by the trial judge of both the legal principle for which that case stands as authority binding on both the trial judge and this court, and the proper and highly relevant basis on which the [mother] sought to tender the affidavits and rely upon them at trial.
(Footnotes omitted)
That submission was followed by others, which effectively did no more than repeat the arguments made to and rejected by the primary judge. We see no error of law or fact in the primary judge’s approach.
Ground 14 repudiates the primary judge’s acceptance of the mother’s evidence, which the father sought to portray as being dishonest. To the extent that the parties’ evidence was irreconcilable on issues of material fact and neither enjoyed the support of corroborative evidence, the primary judge was required to assess the parties’ reliability. That is an entirely unexceptional part of the judicial function. The primary judge accepted much of the mother’s evidence, even though she was found not to have been entirely “full and frank” on some issues, while the quality of the father’s evidence was compromised due to his perceptions being distorted by his fixed beliefs about the mother (at [19] and [55]–[70]). The father offers no explanation for why his Honour’s assessments in that regard were wrong, either in law or fact. He simply repeats arguments about why the mother’s evidence should have been rejected as unreliable.
Ground 15 challenges this finding made about the father:
69.The father’s perceptions have been distorted by a fixed belief that the mother suffers from a personality disorder and, together with her treating practitioners and lawyers, is responsible for the “destruction” of the marriage. His assessment and analysis of the mother's credit has distracted his attention from considering issues that the Court finds to be more relevant to ascertaining the children’s best interests.
(Emphasis in original)
The father does not explain why the finding was wrong. His submissions are confined to unrelated complaints about some of his evidence-in-chief being struck out, the unfairness of his inability to cross-examine the mother, and the primary judge’s rejection of documents he wanted to tender.
Ground 16 challenges the primary judge’s acceptance of the evidence given by an expert psychiatrist, who reported to the Court in respect of both parties, but only in so far as the evidence concerned the mother.
The primary judge acknowledged how the father challenged the admissibility of the expert’s evidence about the mother because she misled the expert about her past misuse of alcohol. The primary judge accepted the mother did mislead the expert on that issue but did not find that fact rendered the expert opinion evidence inadmissible (at [71]–[74]). The expert evidence was admitted and accepted in certain prescribed respects (at [76]–[78] and [82]–[85]).
In the appeal, the father made this submission:
242.The trial judge largely accepted [the expert psychiatrist’s] evidence about the [mother]. He therefore rejected the [father’s] written submission, which he now repeats, that that evidence had not been shown to be admissible.
(Footnote omitted) (Emphasis in original)
The ground is not made good by the father repeating the arguments rejected at first instance.
The meaning of Ground 17 is difficult to discern but, by advertence to both the particulars and the father’s Summary of Argument, appears to be a complaint of legal and factual error by reason of the father being hindered in challenging the expert psychiatrist in cross-examination about the opinion evidence because parts of his own affidavit evidence were struck out, he was not allowed to cross-examine the mother to elicit useful evidence from her, and he was refused permission to tender documents. The complaint is without merit because, as already explained, those interlocutory forensic decisions by the primary judge were not made in error.
Ground 18 alleges the primary judge “gravely erred” in the approach taken to the evidence given by the father’s clinical psychologist.
The father attended upon the psychologist for “reportable therapy” (at [89]) and gave evidence at the trial. The primary judge found the expert psychiatrist and the psychologist gave “closely aligned” opinions in respect of the father’s presentation and personality traits, though they differed as to whether the father is properly diagnosed with autism spectrum disorder (at [81]). The psychologist opined the father would not be able to help himself from engaging the children in the conflict, which opinion evidence the primary judge accepted (at [87], [93], [96] and [101]). The father submitted the psychologist’s opinion evidence should be accepted, save in respect of the autism diagnosis (at [88]). The primary judge did accept the psychologist’s expert opinion evidence (at [94]–[105]).
The father’s submission in the appeal was:
257.The important point for which this ground contends is that [the psychologist’s] evidence should have been viewed in the context of the very extreme “family violence” to which the [mother] had subjected the [father] and the children for many years.
The submission is rejected. The primary judge rejected the father’s submissions of family violence and was not satisfied the mother had perpetrated family violence upon either him or the children, in which event the psychologist’s evidence could not possibly have been interpreted through the prism of an alternate reality.
Ground 19 alleges the primary judge “gravely erred” in the approach taken to the evidence of the family consultant. The family consultant authored two reports in March 2020 and October 2022. The father accepted the family consultant was an honest witness who expressed genuinely held opinions (at [106]). The primary judge accepted the evidence given by the family consultant in both reports (at [107] and [109]).
During cross-examination, the father cross-examined the family consultant and extracted a concession from him that he would be willing to accept appointment by the Court as an intermediary to monitor “direct communications” between the parties. The father now contends in the appeal that evidence was either ignored or wrongly rejected. The complaint has no merit for the reasons explained in relation to Ground 31.
The father also now complains in the appeal that the primary judge “falsely and possibly also dishonestly summarised [the family consultant’s] overall evidence in a manner highly unfair to the [father]”, which submission is rejected because the father does not deign to explain how or why the summary of the family consultant’s evidence set out within the reasons for judgment was in any way unbalanced.
ALLEGED FACTUAL ERRORS
Grounds 20, 21, 22, 23, 24, 26, 27, 28 and 30 each allege errors “in law and in fact”, but they comprise complaints about factual findings.
Ground 20 challenges the primary judge’s finding that the father engaged in family violence against the mother, which finding was expressed this way by the primary judge:
120.The father has engaged in family violence against the mother since the parties separated, which falls within the following categories:
1.Alleging that the mother suffers from undiagnosed borderline personality disorder (“BPD”).
2.Alleging that the mother kidnapped and unlawfully detained the children.
3.Subjecting the mother to complaints to the [Professional Complains Committee].
4.Subjecting the mother's legal practitioners to complaints to the [Profession Complaints Committee].
5.Subjecting the mother's treating practitioners to complaints to the Australian Health Practitioners Regulation Authority.
Thereafter in the reasons for judgment, the primary judge explained the principal finding in greater detail (at [121]–[155]).
It is worthwhile observing here that, whilst judgment was reserved, the mother procured an interim family violence order for her protection against the father from a State court (at [156]–[160]), which State proceedings were not complete by the time judgment was delivered (at [161]). The available inference is that another court was independently convinced, even if only on an interlocutory basis, that the mother needed protection from the father (s 69ZX(3)(b) of the Act).
The father’s point in the appeal is simply that, because the mother had “dishonestly evaded proper diagnosis and treatment of her serious mental health issues”, then her allegations of family violence against him must necessarily have also been dishonest and so should have been rejected. Such a superficial analysis is rejected. Even assuming the mother was dishonest about other aspects of her evidence, the primary judge was not obliged to treat the entirety of her evidence as dishonest or unreliable (Louth v Diprose (1992) 175 CLR 621 at 624–625 and 635–636; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155; McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9).
Ground 21 alleges the primary judge placed “undue weight” upon the finding that the father committed family violence when exercising discretion as to the nature of the parenting orders that should be made. The complaint is rejected. Complaints about the weight attributed to evidence are only relevant to complaints that the ultimate exercise of discretion was manifestly unreasonable or unjust (Hedlund & Hedlund (2021) FLC 94-065 at [12], [36] and [37]). No such complaint is made in this appeal and, even if it was, it would fail. The appealed orders were mutually promulgated by the mother and the ICL and were consistent with all of the expert opinion evidence. The orders were clearly made within the bounds of a reasoned exercise of discretion.
Grounds 22 and 23 complain of the primary judge’s failure to find the mother posed risks of harm to the father and the children by reason of her propensity to commit family violence.
The primary judge was not satisfied the mother had perpetrated family violence (at [162]) and was not satisfied she posed an unacceptable risk of harm to the children (at [164]–[165]).
The father’s submissions in respect of these grounds, which are rejected, were as follows:
Ground 22
265.It may not be possible for this Court to deal with this ground, which complains, in essence, that the trial judge erred in failing to make findings that would have been based on evidence that he wrongly excluded. The ground is properly to be seen as indicating what findings would have been made if the trial judge had not wrongly excluded that evidence.
Ground 23
266.This ground largely speaks for itself. It builds on the earlier grounds to which it specifically refers.
(Emphasis in original)
Ground 24 challenges the finding that the father poses an unacceptable risk of harm to the children, which finding the primary judge expressed this way:
166.The father poses an unacceptable risk of emotional and psychological harm to the children for the following reasons:
(1) his history of family violence towards the mother, earlier discussed;
(2)his failure to respect or attach any weight to the children's views, and the basis for those views, as identified by [the psychologist] and [ the family consultant], in the orders that he seeks at trial;
(3)for the reasons given by [the psychologist], earlier discussed, that he will likely be unable to avoid telling the children ''the truth'', as he perceives it, in response to any questions they may ask;
(4)he is unlikely to engage in further counselling or therapy, due to his material deficit in emotional and psychological perspective-taking from another person's point of view; the Court relies upon [the psychologist’] evidence in forming this view; and
(5)associated with the previous reason, and in accordance with the evidence given by [the expert psychiatrist], the father has difficulty departing from views which he holds about issues of importance to him (which include the issues covered by the five categories of family violence, earlier discussed).
(Emphasis in original)
The father’s submission in respect of this ground, which is rejected, was as follows:
267.This ground largely speaks for itself. It builds upon ground 20, and contends that the trial judge wrongly misconstrued various aspects of the evidence of [the expert psychiatrist] and [the psychologist] about the [father]. Of particular importance amongst the evidence, including evidence of the [father], not properly considered by the trial judge was evidence to the effect that the [father] could be relied upon to comply with Court orders, and that the [father] himself considered that he and the children, if reunited on the basis that he had sole parental responsibility for them, would need counselling to assist them in dealing with the transition from the children’s then-present circumstances.
Ground 26 challenges the finding that the mother had promoted the children’s relationships with the paternal grandparents, which finding the primary judge expressed this way when considering the application of the now repealed s 60CC(3)(b) of the Act:
173.The mother has promoted the relationship between the children and the paternal grandparents.
The finding was apparently made by acceptance of the mother’s evidence-in-chief (from her affidavit filed on 28 October 2022 at [84]–[95]) of her efforts to maintain the children’s contact with the paternal grandparents from the time of the parties’ separation in 2016, which evidence she adduced at trial (at [39]), and which was partly corroborated by the family consultant (at [107.3]). The father’s description in the appeal of the mother’s evidence being “very brief, non-specific, evasive, dishonest and false” is rejected. The father adduced evidence to the contrary (in his affidavits filed in June 2023 and July 2023) at trial (at [49]), about which he was not cross-examined, but the primary judge’s acceptance of the mother’s evidence was not an error just because the father disputed it.
Ground 27 challenges the finding that the father had not taken “parenting opportunities” since the parties’ separation in 2016, which finding the primary judge expressed this way when considering the application of the now repealed s 60CC(3)(c) of the Act:
174.The father has not taken the following relevant parenting opportunities since separation because:
(a)at his initiative, the order for supervised contact in 2017 was discharged, without constructive follow up;
(b)the father refused to attend mediation;
(c)the father did not make any proposals to spend regular time with the children;
(d)the father did not apply to spend time with the children following the discharge of the supervised contact order; and
(e)the father did not speak to [the middle child] in October 2022, when she sought to do so.
The father’s grievance with that finding hinges entirely upon his assertion that the mother “persistently refused” to let the children see him, which flies in the face of other findings made by the primary judge to the effect that the mother will promote the children’s relationships with the father, to the extent it is safe to do so (at [65(32)], [104(1)], [107.5] and [163]), and that she had not influenced the children against him (at [94(4)], [94(6)], [104(1)], [107.1] and [109.9]). The primary judge accepted the family consultant’s evidence that the father bears principal responsibility for the children’s distress by reason of his refusal to engage with them (at [107.6] and [107.7]).
Ground 28 challenges the primary judge’s findings in respect of the father’s child support obligations, as required by s 60CC(3)(ca) of the Act, which entailed the rejection of his submissions by these observations in the reasons for judgment:
176.With effect from 1 February 2023, the father owed the mother arrears of child support in the sum of $7,957.21. The father has been unemployed since September 2019. The father has not discharged his maintenance obligations to the extent that he owes arrears of child support.
177.The mother has discharged her maintenance obligations towards the children since separation.
178.The father argued that, because the mother was a kidnapper of the children, she was not an eligible carer of the children under the child support legislation, at least for the period from February 2017 until March 2021. The father contends that money he paid as child support during this period was “effectively stolen” from him. This submission is devoid of merit.
(Footnotes omitted) (Emphasis in original)
In essence, the father’s submissions in the appeal merely repeat the submissions he unsuccessfully made to the primary judge, which do not expose any legal or factual error in the findings.
Ground 30 challenges the primary judge’s finding that the father had not been child-focussed, which finding his Honour expressed this way when considering the application of s 60CC(3)(i) of the Act:
181.The father has not been child-focussed in his behaviour and conduct of these proceedings since separation.
The finding flowed quite easily from other established facts, such as: the father terminated the children’s visits with him in October 2017 (at [3]–[4], [107.7] and [174]); he did not respond to their communication (at [107.6] and [109.4]); he used the litigation as the vehicle to pursue the professional discipline of multiple professionals engaged with the parties (at [12], [54] and [120]); he lacks insight (at [94(1)], [101(1)], [109.7], [166(4)] and [166(5)]); he failed to respect the children’s views (at [166(2)]); and he pursued unrealistic orders (at [182]). The few submissions made by the father in the appeal failed to come to grips with that reality.
DISPOSITION
The appeal is dismissed.
The ICL did not seek costs, so no order is made.
I certify that the preceding one hundred and fifty-seven (157) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, O'Brien & Schonell. Associate:
Dated: 6 June 2024
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