Mertens & Mertens
[2016] FamCAFC 136
•22 July 2016
FAMILY COURT OF AUSTRALIA
| MERTENS & MERTENS | [2016] FamCAFC 136 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against parenting orders – Where the trial judge found that the father posed an unacceptable risk to the child – Where such a finding was open on the evidence before the trial judge – Where the trial judge ordered that the child spend only supervised time with the father to avert this risk – Where the father claimed a denial of procedural fairness as he was self-represented in the proceedings – Where the trial judge assisted the father to understand and participate in the process of the hearing as a self-represented litigant – Appeal dismissed – Costs orders made. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to issue a subpoena to adduce further evidence and that the appeal be adjourned – Where there is no indication that the evidence sought to be adduced would fall under the guidelines in CDJ & VAJ (1998) 197 CLR 172 – Where it has been two years since the orders on appeal were made – Where there was no reason given for the delay in seeking the adjournment – Where the Court found it is not necessary to do justice between the parties to grant the father’s application for adjournment – Application dismissed. |
| Family Law Act 1975 (Cth) ss 64B, 65D, 66E, 68B(2), 97(3), 114(3), 117 |
Family Law Rules 2004 (Cth) rr 1.04, 1.08, 22.39
| Aon Risk Services v Australian National University [2009] 239 CLR 175 CDJ v VAJ (1998) 197 CLR 172 Edwards v Noble (1971) 125 CLR 296 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Re F: Litigants in person guidelines (2001) FLC 93-072 |
| APPELLANT: | Mr Mertens |
| RESPONDENT: | Ms Mertens |
| INDEPENDENT CHILDREN’S LAWYER: | Grant & Co |
| FILE NUMBER: | NCC | 2009 | of | 2013 |
| APPEAL NUMBER: | EA | 97 | of | 2014 |
| DATE DELIVERED: | 22 July 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 22 July 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 475 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Mooney |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Fraser |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Grant & Co |
Orders
The Application in an Appeal be dismissed.
The appeal be dismissed.
The appellant pay the costs of the respondent and the Independent Children’s Lawyer of and incidental to the appeal as agreed and in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mertens & Mertens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 97 of 2014
File Number: NCC 2009 of 2013
| Mr Mertens |
Appellant
and
| Ms Mertens |
Respondent
and
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
The Application in an Appeal
Kent J
The parenting orders, the subject of this appeal, were made more than two years ago on 3 July 2014. Almost two years has elapsed since the father filed his Notice of Appeal against those orders on 29 July 2014. The father’s summary of argument in support of this appeal was filed on 16 December 2014. The respondent mother’s summary of argument was filed on 13 February 2015 and the Independent Children’s Lawyer’s summary of argument was filed on 17 March 2015. As will be clear, the prospect of the appeal being heard has been extant now for a long time. By correspondence of 9 June 2016 the parties were given notice by the Registrar that the appeal was listed for hearing today.
At today’s hearing, the father pursues an application for the appeal to be adjourned. That application was filed only on 19 July 2016 with an affidavit filed in support.
The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.
The fundamental consideration is whether the adjournment is necessary to do justice as between the parties.
Added to that which I have already observed, s 97 (3) of the Family Law Act 1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, r 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, r 1.08 imposes an obligation upon parties to ensure their readiness for court events; and to give notice as soon as possible of an intention to apply for an adjournment. In relation to appeals and Applications in an Appeal, as has been pointed out to the father during the hearing of this application, r 22.39 imposes an obligation as to time in respect of applications for the filing of further evidence on an appeal at least 14 days in advance of the sittings in which the appeal is listed.
The father broadly contends that the appeal should be adjourned on the basis that a subpoena should be issued to produce documents from the supervision sources identified in the proposed subpoena. The father contends that what would be produced is evidence supporting his contention that there have been breaches of orders by the mother, both since the orders were made more than two years ago on 3 July 2014 and indeed orders made prior to the making of those orders.
The father suggests that these matters have not been the subject matter of contravention applications brought by him on the basis of legal advice he has received that breaches would be difficult to prove, although he later qualified that suggestion by saying they would be difficult for him to prove on the basis that he is self-represented.
It may immediately be observed that the guidelines provided by the High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) for the admission of further evidence make it plain that further evidence is not admitted on appeal on the asking. Nothing the father has submitted this morning demonstrates that the subject material would fall within established guidelines for the further evidence he refers to be admitted on this appeal, even if he was given the opportunity to adjourn the hearing of the appeal and issue the subpoena referred to.
The father has not to my mind satisfactorily explained why he has delayed for so long in seeking the issue of subpoena or delayed for so long in his making of this application in circumstances where this appeal has been extant for now almost two years.
The application for adjournment is opposed by each of the mother and the publicly funded Independent Children’s Lawyer. As already referred to, a relevant consideration is prejudice to other parties which cannot be accommodated by orders for costs.
Inevitably, appeals against parenting orders involves the respondent in a degree of uncertainty about their life and living arrangements, and parenting arrangements pending the determination of the appeal. Invariably such appeals create added stress to the mother, in this case, as the primary carer of the child, the subject of the proceedings. It may be added that there are a large number of cases awaiting hearing of appeals in this Registry and a large number of litigants, in similar circumstances to the mother, waiting for this Court to resolve the uncertainties that exist in relation to their appeals. An adjournment would displace other litigants.
For these reasons I am not persuaded that it is necessary to do justice between these parties to grant the father’s application for an adjournment of his appeal or to give him leave to issue the subpoena he seeks. For these reasons I would dismiss his application for an adjournment of the appeal and associated orders contained in his Application in an Appeal filed on 19 July 2016.
Ainslie-Wallace J
I agree with the orders proposed by Justice Kent and the reasons for making them.
Thackray J
I also agree and accordingly order that the father’s Application in an Appeal filed on 19 July 2016 be dismissed.
The Appeal
Ainslie-Wallace J
Mr Mertens, who for convenience I will call “the father”, by Amended Notice of Appeal filed on 29 July 2014 appeals against parenting orders made by Austin J on 3 July 2014 in respect of M Mertens to whom I will refer as “the child”, the only child of the father and Ms Mertens to whom I will refer as “the mother”. The child was born in 2009.
Since the making of his Honour’s orders the father has spent only supervised time with the child.
Although the trial judge found that the child had a meaningful relationship with the father and there was a benefit to her in continuing that relationship, his Honour found that the father posed an unacceptable risk of harm to the child, that being through sexual abuse, and thus the means by which the child could be protected from the eventuation of that risk was that her time with the father be subject to supervision.
The parties separated in early May 2013 although the mother and the child did not leave the marital home until July 2013. It was at this time that the child made statements to the mother which led her to be concerned that the father may have sexually abused her. When the mother raised the child’s statements with the father he angrily denied them and threatened to kill her if she accused him of “that shit”.
The child’s statements were reported to the relevant welfare authorities who investigated them but the complaint was unsubstantiated. It was not the mother’s case before the trial judge that this incident did more than raise concerns in her mind and she did not seek his Honour make positive findings about that incident amounting to abuse.
Nonetheless his Honour concluded that the evidence in the case established that the father posed an unacceptable risk of harm to the child through sexual abuse (at [80]), a finding against which the father appeals.
Finding of unacceptable risk
His Honour’s conclusion was founded on his satisfaction of a number of incidents some of which were uncontroverted. The uncontroverted facts were:
·The father’s first marriage came about when his then girlfriend became pregnant. She was 15 at the time of conception, he was 19.
·In 1997 he was convicted in New Zealand of the offence of sexual violation by digital penetration and the offence of attempted rape of a 12 year old child. He was sentenced to concurrent terms of seven years imprisonment for each offence of which the non-parole period was four years and eight months.
The circumstances of the offending were set out by his Honour and taken from the sentencing remarks of the High Court of New Zealand. It is of assistance to repeat them here.
53. …you are appearing for sentence having been convicted before a jury on one charge of sexual violation by digital penetration and one charge of attempted rape. The first charge carries a maximum penalty of 20 years imprisonment and the second a maximum penalty of ten years imprisonment.
…
…you knew who she [the victim] was and indeed your former partner also knew who she was, where she lived and knew of her parents and that her parents are profoundly deaf.
…your fingerprints and nobody elses were inside a window which gave access to her [the victim’s] brother’s bedroom. The evidence also was that debris from the garden was found inside the house indicating that you had climbed through that window and made your way through the house into her bedroom. There you put your hand across her mouth, threatened her and then violated her by inserting your finger in her vagina and then got on top of her and tried to rape her. It was a dastardly, gross piece of criminal behaviour. You invaded not only the privacy of her home but the privacy of her bedroom, the place where she felt most safe. She was only twelve.
It is also uncontroversial that the father denies his guilt and has always done so (at [57]). During his imprisonment the father was offered participation in rehabilitation programs to reduce the prospect of recidivism. He rejected those offers and was said not to be interested in considering strategies for reducing the risk of offending in the future. In a report to the Parole Board by a Department of Corrections psychologist the following was noted (at [60]):
He remains a high risk for re-offending as long as he continues to avoid addressing his past problems, his offending behaviour, and fails to consider his future behaviour.
The father declined to discuss the conviction or the circumstances of his offending with the family consultant who prepared a report for the proceedings before his Honour. His Honour noted that the family consultant agreed that the father remains a high risk to the child (at [61]). In explanation of this conclusion she said:
62. …engaging in the sexual assault of a child demonstrates that the father has the proven capacity and willingness to utilise a range of tactics and strategies for the purpose of personal gratification to the detriment of the child’s inherent need for physical, sexual and emotional safety. Specific examples of such would include the father having disregarded or deliberately utilised the inherent power imbalance between an adult and child for his own sexual advantage; the father having behaved in an exploitative rather than protective manner toward a child (suggesting significant empathy deficits for children in general); and, the father having clear difficulty with impulse control and with his ability to recognise and implement age and developmentally appropriate boundaries (particularly in relation to sexuality of children).
Given that the father denies in that he has behaved in the manner which it has been proven beyond a reasonable doubt that he has behaved, it follows that he is not remorseful and that he has no insight into his offending behaviour (and the impact of it on the victim). Accordingly the risk of re-offending would appear to be reasonably high.
At [63] and [64] the trial judge held:
63. The Family Consultant’s opinion makes perfect sense. An adult who breaks into the home of profoundly deaf parents in the middle of the night to sexually violate their 12 year old daughter in her own bed has no compassion, empathy or respect for either the victim or her parents. The father’s conduct was a pre-meditated pursuit of his own sexual gratification without any regard for the physical and psychological welfare of his victim, who was a defenceless minor.
64.The absence of any evidence suggesting the father has indulged in any further sexually exploitative conduct with a minor since 1995, at least up until 2013 when the more recent allegations concerning his possible sexual abuse of the child were made, does not necessarily mean the risk posed by the father of child sexual abuse has abated.
His Honour took into account other incidents in coming to his conclusion about the father posing a risk of sexual abuse to the child.
He referred to the circumstances of the father’s second marriage, the marriage to the mother in these proceedings being his third marriage. When that marriage ended there were proceedings between the parties in which the mother asserted that the father had sexually molested their two children. The genesis of the allegation was said to result from the children’s sexualised or erotic behaviours. It was also alleged that the father behaved in “sexually suggestive ways with women and young girls” (at [47]).
His Honour recorded that two psychologists reported to the court in New Zealand where the proceedings took place and neither associated the children’s observed behaviours with any sexually inappropriate conduct by the father. At the conclusion of those proceedings, orders were made providing that the father spend substantial amounts of time with the children. There was no requirement for that time to be supervised (at [50]).
Turning to the father’s evidence, his Honour noted that the father denied any impropriety with the child. His Honour found this denial to be unconvincing because the father at the same time denied sexual abuse of any child. His Honour said:
77. …The Court is obliged to regard that denial as false because of his conviction for the offences of child sexual abuse in 1995. He was found to have committed those offences beyond reasonable doubt.
In considering the weight to be afforded the father’s denials, his Honour took into account the father’s concession that he had filed in the proceedings an affidavit which was knowingly false. His Honour concluded that the father was prepared to be untruthful when it suited him (at [78]).
His Honour said:
79. The unexcluded possibility of a parent’s sexual abuse of a child may be sufficient reason in itself to conclude the parent constitutes an unacceptable risk of abuse to the child, just as it validly did in M v M. But more usually the existence of an unacceptable risk will be established by an accumulation of facts and circumstances, some of which may not be individually established as probable. The strength of the evidence lies in its cumulative effect, much like the strength of rope derives from the combination of its individually weaker strands.
(Citations omitted)
His Honour set out the bases on which he reached the conclusion at [80]:
(a)His sexual intercourse with a child aged 15 years when he was aged 19 years. Even though the sexual relationship was consensual, the child’s immaturity vitiated her consent. The father likely took advantage of his superior emotional maturity.
(b)His brazen home invasion and terrifying sexual attack upon a 12 year old child in the dead of night when he was aged 35 years.
(c)The “possibility” of his sexual impropriety with the children of his second marriage, albeit such allegations found no favour with the New Zealand Court which heard and determined those parenting proceedings.
(d)The father’s honest perception that “young girls and women” are infatuated by him and continually accost him, which self-belief in his physical appeal dovetails with his second wife’s allegations that he is flirtatious with young girls and women.
(e)His refusal to accept responsibility for his past misconduct, which tends to prove his willingness to prey upon those he perceives to be vulnerable or those he feels able to sexually beguile.
(f)The “possibility” of his past sexual abuse of the child.
(g)The father’s immodesty and frequent nudity in his own home, which behaviour is not modified in the presence of the child. As the Family Consultant said in cross-examination, there are different ways to regard that behaviour. On the one hand, it might be entirely normal and benign, but on the other, it might de-sensitise the child to nudity and blur the boundaries of propriety, making her sexual molestation easier to achieve.
In considering these factors, along with acknowledging that the father remained a high risk of recidivism, the trial judge made a finding at [81] and [82] that the father was a risk to the child and as such “[t]he only way to satisfactorily avert the risk and protect the child from harm is to ensure she visits the father under professional supervision at a commercial contact centre.”
In regards to the family violence issue, the trial judge made a finding at [87] that both parties were perpetrators of family violence, however there was no harm to the child.
Finally, the trial judge found that the parties were incapable of cooperating and making decisions together; equal shared parental responsibility was not an option (at [104] and [105]). Further, it would be in the best interests of the child to reside with the mother as she was the primary figure in the child’s life and whom she had also lived with (at [106]).
The appeal
The Notice of Appeal filed by the father contains five asserted grounds of appeal. In his summary of argument, the father argued the challenges to his Honour’s orders under three broad headings. The summaries of argument of the mother and Independent Children's Lawyer similarly considered the issues under those headings and it is convenient if I too adopt that approach. At the outset of the appeal, the father indicated that he felt unable to make oral submissions in support of his appeal. However, he relied on his written argument. Equally both the mother and Independent Children's Lawyer relied on their summaries and made no further oral submissions.
It is clear that the father challenges his Honour’s findings of fact and the exercise of his discretion.
It is perhaps helpful then to indicate at the outset the difficulties which attend the successful assertion of appellate error in fact finding and in relation to the exercise of discretion.
In Edwards v Noble (1971) 125 CLR 296, Barwick CJ said at 304:
The question is not whether the appellate court can substitute its view of the facts which, of course, it is empowered to do: but whether it should do so. In any appeal against a finding of fact, whether or not by way of rehearing, however much the appellate court may be in an equal position with the trial judge as to the drawing of inferences, in my opinion, the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong.
In CDJ v VAJ (supra), Kirby J said of challenges to the exercise of discretion and in conformity with earlier authorities such as House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513, at 230‑231:
186. … To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong.
(Footnote omitted)
It is by reference to these principles that I consider the father’s challenges to his Honour’s order.
The finding of unacceptable risk of harm
Ground 2 of the father’s appeal asserts that “reasonable grounds to believe that the father did not engage in sexual abuse of the child.” In the summary of argument it is asserted that his Honour erred in making findings of facts which were not supported by the evidence and it is further contended his Honour erred in the exercise of his discretion.
In relation to this asserted error the argument asserts that the “presumption of probabilities of either sexual abuse or physical or psychological harm to [the child] by the father or of any exposure to family violence committed by him simply does not equate to veracity in the father’s overall character and or evidence and therefore is illogical. The totality of evidence held at Court confirms this.” (Father’s summary of argument, filed 16 December 2014 at paragraph 1).
Further, the father contends that his Honour was in error to “imply the father’s character being archetypical of paedophilia or paedophilic behaviour because he continues to avoid addressing his past problems is completely wrong and against the totality of the evidence…” (father’s summary of argument, filed 16 December 2014 at paragraph 2).
Both of these submissions are affected by a foundational error. His Honour did not find that the father sexually abused the child or had caused the child physical or psychological harm. As his Honour’s findings to which I have referred make clear, he found that there was an unacceptable risk of harm to the child posed by the father. That finding was based, as I have said, on the evidence before him.
Equally, there was no implication of “paedophilic behaviour”. However, the family counsellor expressed concerns about the future by reason of the father’s refusal to discuss his past criminal offending.
It must be noted that his Honour’s conclusion as to the existence of unacceptable risk was based on undisputed or uncontroversial facts. Although the father maintained his denials of sexual offending against the young girl in New Zealand, the fact of his conviction prevails and his Honour was entitled to take it and the other evidence to which he referred in determining the issue.
Further, although the father contends that his Honour made errors of fact, none was identified in his summary of argument and on that basis, this challenge to his Honour’s orders is unable to be sustained.
His Honour’s finding of the existence of unacceptable risk was entirely open to him on the facts of the case and in my opinion no error has been demonstrated.
The order for supervised time
It seems that this order is challenged in two respects. First, the father contended that an order for supervised time between the child and him is not in the child’s best interests because it will impede the development of a meaningful relationship with the father (Ground 1). Secondly, the father contends that his Honour applied a wrong principle of law in ordering him to pay the costs associated with the supervision of the child’s time with him.
It is convenient to deal first with the second aspect of this challenge, the order that the father pay the costs of supervision.
The father seeks to characterise the order for him to meet the costs of supervision of time as a child maintenance order within the meaning of s 66E. That section precludes the making of a child maintenance order if an application could be made for child support under the Child Support (Assessment) Act 1989 (Cth).
The father’s approach is misconceived. The order is not a child maintenance order.
Section 64B of the Act contains the meaning of “parenting order and related terms”. It can be seen from subsection (2) of that section that a “parenting order” may deal with a wide range of matters including:
…
(b) the time a child is to spend with another person or other persons;
...
(e) the communication a child is to have with another person or other persons;
…
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The mere fact that the form of order made, or conditions imposed upon the order, for a child to spend time or communicate with a parent has economic consequences does not alter its status as a parenting order. Orders for time will almost invariably involve expenditure such as travel costs and/or accommodation expenses and/or expenses for other provision for the child. Section 65D of the Act provides the Court power to make such a parenting order as it thinks proper.
Each of s 68B(2) and s 114(3) of the Act provide wide powers for the Court to make mandatory injunctions and would arguably also be a juridical source of power to make orders of the subject kind, but it is unnecessary to discuss this further given that the subject order was a “parenting order” made pursuant to the power in s 65D.
Turning then to the contention that the order for supervised time would impede the relationship between the father and child, his Honour noted that the father submitted that the child did not have a meaningful relationship with him and supervised visits would impede the development of that relationship. Despite the father’s submission his Honour found:
36. Despite the father’s contrary submission, the child does have a meaningful relationship with him, although it may not be as meaningful to her as the relationship she enjoys with the mother. The mother expressly conceded the child has a “positive relationship” with the father, which she appears to enjoy. In truth, the child’s relationship with the father is deeper than that. The records of the contact centre reveal the child to be happily expectant about her visits with the father and animated in his company. …
37. There is a benefit to the child in maintaining her meaningful relationship with the father, just as there is in respect of her relationship with the mother, but the manner of retention of the child’s relationship with the father is heavily influenced by the risk of harm the father poses to her. …
(Footnotes omitted)
Having found the existence of an unacceptable risk of harm to the child from the father, his Honour found that the only way to avert the risk was to order supervised time between the child and the father (at [82]).
The family consultant said that, in her opinion, permanent supervision of the time between the child and father was likely to impair the relationship between them because as the child ages and matures she will wonder why it is that her time with the father is supervised and she may feel the time is restricted by the confines of the supervision facility (at [109]).
His Honour concluded:
109. …Nonetheless, the mother and Independent Children’s Lawyer regarded that as a better option than elimination of the father from the child’s life. In a choice between supervision and elimination of the father, his supervision is a preferable alternative, consistently with the proposal of the mother and Independent Children’s Lawyer. The child does have a meaningful relationship with him and she would be disturbed by his disappearance from her life.
110. The father told the Family Consultant he saw some personal benefit for him in the supervision of his relationship with the child, but he submitted to the Court that the imposition of supervision would be detrimental to the child.
(Footnote omitted)
Clearly then his Honour sought a way to continue the meaningful relationship he found the child had with the father without exposing her to an unacceptable risk and determined that the child’s time should be supervised. The conclusion was entirely open to him on the evidence and in my view no error has been demonstrated.
Error in the exercise of discretion
Regrettably the summary of argument gives no assistance in understanding the arguments supporting the ground. However, it seems that the challenge devolves to an assertion that the evidence before his Honour was of unsubstantiated allegations of sexual abuse. As has already been made clear, the finding of unacceptable risk of harm to the child from the father did not depend for its making on a finding that there had been abuse.
In somewhat vague terms, the father also complains of a denial of procedural fairness because he was unrepresented during the hearing before his Honour. Counsel for the respondent in his submissions took the Court to passages in the transcript of the hearing before his Honour in which he, in conformity with authority, assisted the father to understand and participate in the process of the hearing. (see Re F: Litigants in person guidelines (2001) FLC 93-072). In summary the trial judge:
·Informed the father as to how the trial was to proceed, including the process and procedures of calling witnesses, and cross examination (transcript 16 June 2014, page 7-11);
·Provided the father with general advice for when it is appropriate to object to inadmissible evidence (transcript 16 June 2014, page 27 line 23-34);
·Detailed to the father the law applied by the Court in determining issues (transcript 16 June 2014, page 10 line 16-47, page 11 line 1-13);
·Clarified the orders that were being sought by the father (transcript 16 June 2014, page 54 line 26-47);
·Assisted the father when he was questioning witnesses by taking basic information etc. (transcript 16 June 2014, page 23 line 18-34 and page 104 line 26-41);
·Informed the father of his rights in relation to a possible claim of privilege concerning questions asked ( transcript 16 June 2014, page 62 line 11 et seq.);
·Clarified the substance of the submissions made by the father (transcript 18 June 2014, page 236-243); and
·Provided the father with the opportunity to seek leave to call further witnesses (transcript 16 June 2014, page 6 line 22-41).
No error has been shown in the way his Honour conducted the proceedings having regard to the father being unrepresented nor has error been shown in the exercise of his Honour’s discretion.
I would thus dismiss the appeal.
Costs
At the conclusion of the appeal hearing, the parties’ submissions on the costs of the appeal were sought. Both the respondent and the Independent Children's Lawyer sought orders for their costs in the event that the appeal was unsuccessful.
The power to award costs is governed by s 117 of the Act which provides that parties to proceedings in the Family Court shall each bear his or her own costs. That general rule is however subject to s 117(2) which provides that if there are circumstances that justify it, the court may make an order for costs. In considering whether such an order is to be made, the court must have regard to the provisions of s 117(2A). Relevant to this matter is s 117(2A)(a), the financial circumstances of the parties; (b) whether any party is in receipt of legal aid and the terms of the grant; and (e) whether any party to the proceedings has been wholly unsuccessful.
The mother and the Independent Children's Lawyer are both in receipt of legal aid, and the mother is required to make a higher than usual contribution to her costs because she works part-time. The father said that he was self-employed, and earned $53,000 per annum, he owns property in New Zealand and owns business equipment.
In my view that the appeal should be dismissed, I would order that the father pay the mother’s and the Independent Children's Lawyer’s costs of and incidental to the appeal, including the costs of the other parties in meeting his Application in an Appeal and I would order that those costs be assessed or agreed.
Kent J
I agree that for the reasons expressed by Ainslie-Wallace J this appeal ought be dismissed and that the father ought be ordered to pay the costs of the other parties of and incidental to the appeal and to the Application in an Appeal filed on 19 July 2016.
Thackray J
I also agree with the reasons delivered by Ainslie-Wallace J. I agree also with the orders that she proposes.
Accordingly, the orders of the Full Court are these: first, the appeal be dismissed; secondly, the appellant pay the respondent’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal and the Application in an Appeal, to be assessed if not agreed.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Ainslie-Wallace & Kent JJ) delivered on 22 July 2016.
Associate:
Date: 29 July 2016
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