Lindfield & Romano
[2022] FedCFamC1A 81
•2 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lindfield & Romano [2022] FedCFamC1A 81
Appeal from: Lindfield & Romano [2021] FamCA 158 Appeal number(s): NAA 16 of 2021
NAA 56 of 2021File number(s): SYC 5523 of 2010 Judgment of: AUSTIN, TREE & WILLIAMS JJ Date of judgment: 2 June 2022 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against final parenting orders – Section 102NA of the Family Law Act 1975 (Cth) – Where the primary judge erred in mistakenly imposing the mandatory conditions to prevent the appellant from personally cross-examining the respondent during the trial when no order had been made – Where notations are not orders – Error of law established – Where the appellant bears the onus of establishing that the error of law was material to the outcome – Where the exercise of discretion by the primary judge would inevitably have produced the same outcome – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Appeal against costs orders of the trial – No appealable error demonstrated – Appeal dismissed – Appellant ordered to pay the costs of the respondent and Independent Children’s Lawyer in a fixed sum.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 68B, 102NA Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Saltern & Mink [2020] FamCAFC 320
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 53 Date of hearing: 4 May 2022 Place: Heard in Sydney, delivered in Melbourne Counsel for the Appellant: Mr Harper Solicitor for the Appellant: WND Law Counsel for the Respondent: Mr Macarounas Solicitor for the Respondent: Rowlandson & Co Counsel for the Independent Children's Lawyer: Mr Fermanis Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
NAA 16 of 2021
NAA 56 of 2021
SYC 5523 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LINDFIELD
Appellant
AND: MS ROMANO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, TREE & WILLIAMS JJ
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The Application to amend the Notice of Appeal filed 3 November 2021 in Appeal NAA 56 of 2021 be refused.
2.Appeals NAA 16 of 2021 and NAA 56 of 2021 be dismissed.
3.The appellant pay the costs of the respondent fixed at $29,040.62 and the costs of the Independent Children’s Lawyer fixed at $5,672 within 90 days.
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 Lindfield & Romano has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & WILLIAMS JJ:
By a Notice of Appeal filed 3 November 2021 (NAA 16 of 2021), the appellant appeals against parenting orders made by a judge of the Family Court of Australia (as it was then titled) on 25 March 2021 (“the parenting orders”). By a further Notice of Appeal also filed on 3 November 2021 (NAA 56 of 2021) the appellant appeals against costs orders made by the primary judge on 6 August 2021 (“the costs orders”).
The parenting orders pertain to the parties’ two youngest children who were aged 17 and 11 at the time of the trial (“the children”). The orders provide for the respondent to have sole parental responsibility for the children, the children live with her, the appellant be restrained from coming into direct contact with the respondent or the children, the respondent be permitted to obtain passports for the children without the appellant’s knowledge and for the children’s names to be removed from the Airport Watch List. The costs orders provide for the appellant to pay the respondent’s costs of the parenting trial fixed at $50,000.
The appeal against the parenting orders alleges an error of law by the primary judge in the application of the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”).
Both the respondent and the Independent Children’s Lawyer (“the ICL”) resisted the appeal against the parenting orders.
As to the appeal against the costs orders, the appellant contended if the parenting appeal is successful, the foundational findings of the costs order will no longer apply and the costs appeal should succeed, and if the parenting appeal is dismissed, then the appeal against the costs orders should be dismissed. The respondent also resisted the appeal against the costs orders, as the appellant did not allege or identify any error in that regard. The ICL did not seek to be heard in respect to the costs appeal.
For the reasons that follow, both the parenting appeal and the costs appeal must be dismissed.
BACKGROUND
The appellant is aged 55 and is a self-employed tradesperson. The respondent is aged 50 and is an educator.
The parties married in 2000 and separated in or around 2009, although they remained living under the one roof for a period of time subsequent to separation.
There are three children of the relationship, now aged 20, 18 and 12.
Proceedings under Pt VII of the Act commenced by the respondent in September 2010 resulted in final orders permitting the children increasing time with the appellant, although that time ceased in February 2016.
In June 2016, the appellant recommenced proceedings under Pt VII of the Act. A significant issue during the second proceeding was the respondent’s contention that the appellant had engaged in coercive and controlling behaviour, including verbal and some physical abuse, which continued subsequent to separation. The appellant denied the allegations of abusive conduct.
In January 2020, the family attended upon a Family Consultant for preparation of a family report.
On 27 February 2020, the primary judge conducted a procedural hearing during which he released the family report to the parties. As the appellant was self-represented, the primary judge raised with him the provisions of s 102NA of the Act and alerted him to his asserted inability to personally cross-examine the respondent at the final hearing.
At the conclusion of the procedural hearing, the primary judge made orders, which included the following notations:
IT IS ORDERED THAT
…
2.UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross examination occurring in the proceedings on or after 11 September 2019;
3. And further noting that the parties have each been advised by the Court:
(a)that pursuant to those requirements, neither party may cross-examine the other party personally;
(b)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the party;
(c)as to the availability of Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
(d)that a copy of these orders will be provided by the court to Legal Aid, which administers the said scheme.
…
THE COURT NOTES THAT:
…
D.The Applicant Father will take all necessary steps to make submission for funding for the purposes of representation in accordance with s 102NA of the Act.
(As per the original)
On 7 September 2020, the primary judge conducted a compliance hearing, when the appellant was again self-represented. Procedural orders made at the conclusion included the following notations:
IT IS NOTED THAT
A.Orders were made for the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to apply in relation to representation for the Applicant father against whom allegations of violence are made by the Respondent mother.
B.The legal representative allocated to the Applicant father in accordance with the Legal Aid scheme to provide representation for the purposes of s 102NA of the Act filed a Notice of Ceasing to Act on 27 August 2020.
C.The Applicant father has been advised he must urgently take necessary steps to obtain representation for the trial which is listed to proceed on 21 September 2020.
On 21 September 2020, the first day of the trial the appellant was self-represented. The primary judge reminded the appellant:
HIS HONOUR: You will recall that I have made an order that section 102NA applies to these proceedings, requiring you to be represented for the purposes of cross-examining the mother about any allegations of violence that she makes against you.
(Transcript 21 September 2020, p.24 lines 14–17)
The primary judge further informed the appellant:
HIS HONOUR: No, it’s a situation, without using overly technical language, where there are allegations that you have perpetrated family violence against the mother. Now, we have been over this before, Mr [Lindfield]. It’s not a – I don’t have a discretion to decide whether you can ask questions or not, in circumstances where section 102NA applies. I have to apply the section. Do you understand that?
(Transcript 21 September 2020, p.25 lines 1–5)
The trial proceeded before the primary judge for four days, during which the appellant was not permitted to personally cross-examine the respondent, and the parenting orders were made on 25 March 2021. The orders pertained to the two younger children, as at the date of the trial the eldest child was aged 19. Ultimately, the primary judge concluded that there should not be any time between the appellant and the two children.
We will first consider the appeal against the parenting orders made on 25 March 2021.
GROUNDS OF APPEAL
Ground 1
The trial Judge erred by denying the father the opportunity to cross examine the mother in circumstances where:
a.None of the mandatory conditions of s102NA(1)(c)(i), (ii) or (iii) applied to the circumstances of this case.
b.The trial Judge gave no consideration to the discretionary factors weighing for or against the application of s 102NA(1)(c)(iv).
c.The trial Judge gave no consideration to whether there were alternate protections for the parties available such as those contained in s102NB.
d.The trial judge did not make an Order under s102NA(1)(c)(iv).
This ground of appeal concerns the complaint that the primary judge made an error of law by incorrectly relying on s 102NA of the Act, to prevent the appellant personally cross-examining the respondent during the trial.
Section 102NA of the Act provides:
102NA Mandatory protections for parties in certain cases
(1) If, in proceedings under this Act:
(a)a party (the examining party) intends to cross‑examine another party (the witness party); and
(b)there is an allegation of family violence between the examining party and the witness party; and
(c) any of the following are satisfied:
(i)either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
(ii)a family violence order (other than an interim order) applies to both parties;
(iii)an injunction under section 68B or 114 for the personal protection of either party is directed against the other party;
(iv)the court makes an order that the requirements of subsection (2) are to apply to the cross‑examination;
then the requirements of subsection (2) apply to the cross‑examination.
(2) Both of the following requirements apply to the cross‑examination:
(a)the examining party must not cross‑examine the witness party personally;
(b)the cross‑examination must be conducted by a legal practitioner acting on behalf of the examining party.
Note 1:This section applies both in the case where the examining party is the alleged perpetrator of the family violence and the witness party is the alleged victim, and in the case where the examining party is the alleged victim and the witness party is the alleged perpetrator.
Note 2:This section does not limit other laws that apply to protect the witness party (for example, section 101 requires the court to forbid the asking of offensive questions and section 41 of the Evidence Act 1995 requires the court to disallow certain questions, such as misleading questions).
Note 3:To avoid doubt, a reference to a party in this section includes a reference to a person who is a party because of the operation of a provision of this Act (for example, sections 92 and 92A, which are about intervening parties). This section only applies to an intervening party if the intervening party is involved in the allegation of family violence, whether as the alleged perpetrator or as the alleged victim.
(3) The court may make an order under subparagraph (1)(c)(iv):
(a) on its own initiative; or
(b) on the application of:
(i)the witness party; or
(ii)the examining party; or
(iii)if an independent children’s lawyer has been appointed for a child in relation to the proceedings—that lawyer.
Dealing with the first particular, the appellant contended the primary judge erroneously assumed the conditions specified in s 102NA(1)(c)(i), (ii) and (iii) of the Act, which mandate an automatic prohibition on personal cross-examination, applied to the proceeding.
There was no dispute that s 102NA(1)(a) and (b) of the Act applied to the proceeding, however none of the factors in s 102NA(1)(c)(i), (ii) or (iii) of the Act were satisfied, and there could be no basis for an automatic ban on personal cross-examination, as was imposed by the primary judge.
The respondent opposed the contention that none of the factors in s 102NA(1)(c) were satisfied. She relied upon Order 5 of the 22 March 2012 orders, in a previous proceeding between the parties, to engage s 102NA(1)(c)(iii) of the Act.
The relevant order provides:
5.Both parties will be restrained from denigrating each other (or each other’s extended family) in the presence or hearing of the children and both parties will do all things necessary to ensure that no other person makes critical comments about the other party (or the other party’s family) in the presence or hearing of the children.
It was not controversial the March 2012 order could only have been made pursuant to the power conferred by s 68B of the Act. The injunction was made for the welfare of the children, and not for the protection of the children, nor for the protection of either of the parties. The order sought to be relied upon could not possibly be construed as including any degree of personal protection for a spouse who would not necessarily be present. It cannot automatically engage the prohibition on personal cross-examination, as contemplated by s 102NA(1)(c)(iii).
We accept that the primary judge mistakenly considered that an automatic consideration applied to invoke a prohibition on personal cross-examination, when it did not. There is merit in this complaint.
As to the second and fourth particulars, that the primary judge did not exercise the discretion invoked by s 102NA(1)(c)(iv) and s 102NA(3) of the Act, and no such order was ever made, it is necessary to examine the transcript of both the procedural hearing on 27 February 2020 and the trial. The procedural hearing in February 2020 was the first occasion the issue was raised by the primary judge. There is no reference in either transcript to any application, reasons or orders consistent with an application pursuant to the applicable section of the Act having been heard and determined by the primary judge.
The orders made by the primary judge on 27 February 2020 record three relevant notations at paragraphs 2 and 3 and Notation D. It is apparent from the wording of the paragraphs and the notation, that each is a notation and not an order. Similarly, the procedural orders of 7 September 2020 record relevant notations at A, B and C.
In the primary judge’s reasons for judgment at [18], his Honour refers to a notation to his orders of 27 February 2020, that the requirements of s 102NA(2) of the Act would apply to any cross-examination occurring in the proceedings. At [19], he records the notation was made when the appellant was self-represented and at [21] he refers to the Compliance Check on 7 September 2020, when he once again noted the application of s 102NA of the Act.
The comment of the primary judge on the morning of the first day of trial, that a previous s 102NA order had been made, is contrary to the notations to the orders of 27 February 2020 and 7 September 2020 and the statements in the reasons for judgment. We consider the remarks of the primary judge on 21 September 2020 to be an incorrect characterisation of the notations made. Notations cannot take the place of or be seen to be orders (Oberlin & Infeld (2021) FLC 94-017 at [44]).
There was no order ever made or recorded by the primary judge pursuant to s 102NA(1)(c)(iv) to engage the provisions of s 102NA(2) to prevent personal cross-examination of the respondent by the appellant. There is merit in these complaints.
The fourth particular contends that if the primary judge had properly considered a discretionary ban on cross-examination, such an order would not inevitably have been made because there are alternate measures to protect the witness. However, that poses a hypothetical question as the appeal is against the final parenting orders made by the primary judge on 25 March 2021 and not any other orders.
Ultimately, we accept that the primary judge made an error of law in mistakenly imposing a prohibition on the appellant personally cross-examining the respondent, when neither the automatic provisions of s 102NA(1) were engaged, and nor had the primary judge made a discretionary order pursuant to s 102NA(1)(c)(iv) of the Act.
We now turn to consider the second ground of the parenting appeal.
Ground 2
The trial miscarried as a result of the error in Ground 1.
This ground concerns the consequences of the legal error of the primary judge and the appellant’s contention that his application should be remitted for rehearing.
The error of the primary judge was not a deprivation of procedural fairness per se, but a legal error, the consequence of which was to arguably deprive the appellant of procedural fairness.
Not every denial of procedural fairness vitiates the appealed orders and warrants a retrial (Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”)). It must be demonstrated that the error of law and consequential denial of procedural fairness was material to the outcome of the appellant’s case.
As to the correct test to be applied, in Stead the High Court said, at 147:
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
The appellant bears the onus of not only demonstrating error, but that a different result might have flowed had the legal error not occurred (Allesch v Maunz (2000) 203 CLR 172; Saltern & Mink [2020] FamCAFC 320).
However, although he bears the onus to do so, the appellant did not make comprehensive submissions about whether the error of law of the primary judge was material to the outcome of the trial. It was contended by the appellant that it was not possible to articulate what further information would have made a difference to the outcome because the issue of family violence was central to the case and on multiple occasions the primary judge referred to the respondent’s unchallenged evidence about this.
Notwithstanding this submission, the appellant was unable to identify where in the reasons of the primary judge it was said that the absence of a meaningful challenge to the respondent’s evidence was material to or might have made a difference to the outcome of the trial.
For her part, the respondent contended in the appeal that even if there was an error of law which resulted in a denial of procedural fairness, any cross-examination of the respondent about factual discrepancies would not have been material. We accept this submission.
The issue of family violence was one of multiple considerations which informed the exercise of discretion by the primary judge. As well as family violence, the primary judge identified a number of other relevant issues, including whether the appellant posed an unacceptable risk of harm to the children, and the capacity of either parent, particularly the appellant, to support and encourage an ongoing relationship with the other parent (at [29]). In reaching his findings about family violence, the primary judge relied upon a plethora of evidence and not just the respondent’s evidence.
As can be seen from the reasons for judgment, the primary judge referred in detail to considerations relevant to risk. At [66], he reached his conclusion about the oral evidence and submissions of the appellant, at [96]–[106] he referred to a series of ADVO applications between the parties and the necessity for a recovery order and at [107]–[112], [119]–[133] and [135]–[138] he referred to historical and recent family violence allegations. At [140]–[146], he considered the evidence of the family consultant including the appellant’s insolence, anger, and aggressive demeanour at the family report interview and the children’s distress when the appellant approached them at the conclusion of the interview.
At [198], the primary judge was unable to be satisfied the appellant had capacity to provide for the emotional and intellectual needs of the youngest child, at [192] the primary judge expressed his concerns about the appellant’s capacity to care for the child and at [139] and [231] he was satisfied the appellant had no insight into his behaviour or its effect on the children.
Although the appellant has demonstrated appealable error by the primary judge, he did not discharge his onus of showing that the error was material to the outcome. The principal issue for the primary judge was the risk the appellant posed to the children, which included, but was not confined, to the respondent’s allegations of family violence. Other relevant factors included the appellant’s lack of capacity to provide for the youngest child’s emotional and intellectual needs, his lack of capacity to care for the child on a day to day basis, his lack of insight and the effect of his behaviour on the children, his presentation and demeanour, and the risk of psychological harm to the youngest child through fear of his father. All of these considerations were addressed by the primary judge in reaching his determination. Thus, family violence appears to have been but a very minor part of the reasons why the primary judge determined that the younger child should spend no time with the appellant, as his Honour explained in his ultimate analysis at [230]–[236]. The other matters relied upon, of themselves compelled the outcome ordered in any event.
In our assessment, the outcome of the exercise of discretion of the primary judge under Pt VII of the Act, would inevitability have been the same when the totality of the evidence of the risk posed by the appellant is considered. Cross-examination of the respondent directed to factual disputes about family violence or indeed other topics could not possibly have produced a different result.
There is thus no merit in this ground of appeal and the parenting appeal will be dismissed.
THE COSTS APPEAL
The grounds of appeal in the appeal from the costs orders are identical with the grounds of appeal in the parenting appeal and do not identify any grounds relevant to the costs decision. Counsel for the appellant sought leave to amend the grounds of appeal to include the contention espoused in the Summary of Argument, namely if the substantive appeal succeeds then the foundational findings of a costs order will no longer stand, and the costs order should be set aside and if the substantive appeal fails, then the costs appeal should be dismissed. Counsel for the respondent opposed the application for leave.
The proposed amendments do not identify any appealable error in the costs judgment and leave to amend will be refused. Thus the costs appeal will also be dismissed.
COSTS
If the appeal was unsuccessful, the respondent and the ICL applied for the appellant to pay costs on a party/party basis. The applications for costs were not resisted by the appellant.
In the Schedule of Costs filed 22 April 2022, the respondent claimed costs of $29,040.62. In the Schedule of Costs filed 13 April 2022, the ICL claimed costs of $5,672. As there were no submissions opposing quantum of costs, or time for payment, orders will be made for the appellant to pay the costs of the respondent and the ICL as claimed in the respective costs schedules within 90 days.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Williams. Associate:
Dated: 2 June 2022
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