Miedis & Miedis
[2020] FamCAFC 301
•27 November 2020
FAMILY COURT OF AUSTRALIA
| MEADIS & MEADIS AND ORS | [2020] FamCAFC 301 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge affirmed interim parenting orders and a costs order made by a Senior Registrar – Where the appellant father challenged that decision – Family violence perpetrated upon the mother for which the father is imprisoned – Privilege – Admissibility of redacted transcripts of the father’s telephone calls during his incarceration – Where it was open for the primary judge to admit transcripts – Adequacy of reasons – Procedural fairness – Errors of fact – Errors of law – Weight challenge as to the views of the children – No error identified – Appeal dismissed – Father to pay the mother’s costs in a fixed amount. |
| Evidence Act 1995 (Cth) ss 117, 118, 119, 120, 122, 126K, 134 Family Law Rules 2004 (Cth) r 18.10 Family Law Regulations 1984 (Cth) Sch 9A, reg 12CE |
| Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543; [2002] HCA 49 De Winter and De Winter (1979) FLC 90-605 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67 Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234 Meadis & Meadis and Ors [2019] FamCAFC 146 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217; [2004] FCAFC 122 R v Rogerson; R v McNamara (No. 31) [2016] NSWSC 195 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Zanda & Zanda (2014) FLC 93-607; [2014] FamCAFC 173 |
| APPELLANT: | Mr Meadis |
| FIRST RESPONDENT: | Ms Meadis |
| SECOND RESPONDENT: | Mr G Meadis |
| THIRD RESPONDENT: | Ms H Meadis |
| INDEPENDENT CHILDREN’S LAWYER: | Joliman Lawyers |
| FILE NUMBER: | MLC | 11834 | of | 2016 |
| APPEAL NUMBER: | SOA | 67 | of | 2020 |
| DATE DELIVERED: | 27 November 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Aldridge, Austin & Tree JJ |
| HEARING DATE: | 27 November 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 July 2020 |
| LOWER COURT MNC: | [2020] FamCA 543 |
REPRESENTATION
| THE APPELLANT: | Self-represented litigant |
COUNSEL FOR THE FIRST RESPONDENT: | Mr Testart with Ms Renou |
SOLICITOR FOR THE FIRST RESPONDENT: | Harris Lieberman Solicitors Pty Ltd |
| THE SECOND RESPONDENT: | Did not participate in the appeal |
| THE THIRD RESPONDENT: | Did not participate in the appeal |
| THE INDEPENDENT CHILDREN’S LAWYER: | Joliman Lawyers (did not participate in the appeal) |
Orders made on 27 November 2020
Appeal no. SOA 67 of 2020 be dismissed.
The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $11,931.60, which sum is to be paid from the appellant’s share of the trust funds held for the parties in National Australia Bank account number …96.
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 Meadis & Meadis and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 67 of 2020
File Number: MLC 11834 of 2016
| Mr Meadis |
Appellant
And
| Ms Meadis |
First Respondent
And
| Mr G Meadis |
Second Respondent
And
| Ms H Meadis |
Third Respondent
And
Independent Children’s Lawyer
EX TEMPORE REASONS FOR JUDGMENT
Austin J
By Notice of Appeal filed on 5 August 2020, the appellant (“the father”) appeals from orders made by a judge of the Family Court of Australia on 16 July 2020, which orders were made when judicially reviewing orders earlier made by the Senior Registrar with delegated power on 21 October and 13 November 2019. The primary judge’s orders affirmed the orders made by the Senior Registrar in all respects.
The appealed orders determined two disputes: first, the interim parenting orders concerning the three children born to the relationship between the father and the respondent (“the mother”); and secondly, the equal liability of the father and the second and third respondents (“the paternal grandparents”) to pay the mother’s costs of and incidental to the interim parenting dispute.
The father’s appeal was opposed by the mother.
The Independent Children’s Lawyer (“the ICL”) did not participate. Nor did the paternal grandparents who, despite their joinder to the appeal, forewarned the Regional Appeals Registrar in September 2020 that they would not.
For the reasons which follow, the appeal should be dismissed with costs.
Background
On an afternoon in July 2018, nearly two years after the spouses separated, the father lay in wait for the mother outside the former family home, accosted her when she arrived, viciously assaulted her, forced her inside the house, bound her wrists and ankles with cable ties, attempted to gag her with duct tape, and told her he would probably kill her. She was fortuitously able to escape and seek refuge with neighbours when one of the children arrived home unexpectedly and the father went outside to intercept the child and fabricate an excuse about why the mother was screaming. When the father realised the mother had escaped, he fled the scene and was not arrested by the police until the next day, whereupon he was charged and remanded in custody. Initially, he falsely denied his guilt, but he eventually entered pleas of guilty to a series of offences in May 2019 before the County Court of Victoria.
There can be no dispute about those facts because the father admitted them to be true when he was sentenced to imprisonment for an aggregate head term of four years and six months in September 2019.
Significantly, the father committed those offences upon the mother in breach of an existing State family violence order made for her protection, which order he had already been twice convicted of breaching and for which he was still serving a good behaviour bond. Evidently, he is not inclined to obey court orders he finds a hindrance.
The father’s criminal prosecution ran in parallel with the proceedings being conducted between the spouses under the Family Law Act 1975 (Cth) (“the Act”). In December 2017, six months before the assault, final parenting orders were consensually made between the spouses in respect of their three children by the Federal Circuit Court of Australia, but their property settlement dispute was not commenced until May 2018 and was still unresolved at the time of the assault.
Soon afterwards, in August 2018, the mother applied to suspend the operative parenting orders and, with the father still remanded in custody, her interim application was granted in September 2018.
In November 2018, more interim parenting orders were made, enabling the mother to relocate her residence with the children away from the same township in northern Victoria in which they lived near to the paternal grandparents to another township in north-eastern Victoria near to the maternal family. The orders stipulated that the children should spend no time at all with the father, but did provide for them to spend time with the paternal grandparents, who by then had been joined as parties to the proceedings. The orders permitted the father to communicate with the children by telephone once every three weeks whilst they were visiting the paternal grandparents. The father’s appeal from those orders was dismissed (Meadis & Meadisand Ors [2019] FamCAFC 146).
In May 2019, the proceedings were transferred to the Family Court of Australia for determination.
Two sets of orders were then made by the Senior Registrar on 21 October 2019 and 13 November 2019. The first orders were both procedural and substantive in nature and, in so far as they were substantive, discharged those of the interim orders made in November 2018 requiring the children to spend time with the paternal grandparents and to communicate with the father. The second set of orders required the father and the paternal grandparents to pay, in equal shares, the mother’s costs of the interim hearing in October 2019.
By Applications in a Case filed by the father on 13 and 21 November 2019, he sought the review of the Senior Registrar’s orders. In essence, the father sought that:
a)all former parenting orders – not just those made by the Senior Registrar on 21 October 2019 – be discharged;
b)fresh interim parenting orders be made in these essential terms: the parents have equal shared parental responsibility for the children; the children live with the mother; the children spend defined time with the paternal grandparents; the children visit him in prison when spending time with the paternal grandparents; and he and the paternal grandparents be separately able to telephone the children each week;
c)the costs orders made in the mother’s favour by the Senior Registrar on 13 November 2019 be discharged; and
d)the mother be compelled to pay him more than $100,000 from the funds held in escrow in a bank account, still awaiting disbursement under the property settlement orders made in January 2019, which application was freshly made and did not involve review of any order made by the Senior Registrar.
The mother opposed the father’s applications in all respects, as did the ICL.
The paternal grandparents also sought to review the Senior Registrar’s orders but, given their application was filed many months too late, they were only able to do so with the primary judge’s leave, which was granted at the commencement of the hearing. They sought to restore the interim orders enabling the children to spend time with them and to discharge the costs order made against them. The mother did not file another Response in rebuttal of their Application in a Case, but there was no misunderstanding about the mother’s and the ICL’s repudiation of their application.
The father’s review applications, together with the ancillary application of the paternal grandparents, were entertained by the primary judge on 26 June 2020. Judgment was reserved, with the orders pronounced and reasons for judgment then delivered a few weeks later on 16 July 2020.
The primary judge dismissed the applications made by the father and the paternal grandparents and affirmed the orders made by the Senior Registrar.
The appeal
I shall first deal with the ground of appeal alleging the father’s denial of procedural fairness because, if made good, the error would necessitate the matter being reheard without needing to consider the other grounds (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Zanda & Zanda (2014) FLC 93-607 at [59] and [100]–[101]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Procedural fairness (Ground 11)
Under this ground the father contended he was denied procedural fairness at the hearing in three discrete ways, namely:
a)he was denied the opportunity to be “appropriately heard” because the primary judge regularly interrupted his submissions and was seen to roll her eyes whilst he was making submissions;
b)he was not allowed to “draw reference” to the eldest child’s diagnosis with autism or to “historical expert evidence in relation to the children”; and
c)he was not provided with the opportunity to respond to the submissions made by the mother and the ICL.
None of those assertions of error was established, so the complaint of his denial of procedural fairness should be rejected.
The primary judge was obliged to intermittently interject while the father was making submissions in order to either clarify some aspect of his submissions or to deal with objections made by the mother or the ICL. Without reciting many pages of transcript within these reasons to verify the fact, suffice to say that any balanced appraisal of the transcript contradicts the father’s contention that he was denied the opportunity to be “appropriately heard”. The father filed comprehensive written submissions in advance and was permitted to speak to them. His oral submissions were still much longer than those made by the paternal grandparents, the mother, and the ICL.
Well into the father’s oral submissions he said:
All right. I’m just going to skip – I haven’t got enough time to get through stuff, so I’m just going to skip through some stuff
(Transcript 26 June 2020, p.36 line 47 to p.37 line 2)
The primary judge then invited the father to continue, but by concentrating upon the real issues joined in the interim dispute. The father continued, but he did not heed the primary judge’s exhortation to concentrate on only relevant details. Nevertheless, her Honour continued to listen patiently.
Finally, when the primary judge sought clarification from the father about a submission he was making, her Honour said:
…you’ve got a minute left... [y]ou have had an hour and a half”
(Transcript 26 June 2020, p.42 lines 1–2) (Emphasis added).
The father did not cavil with the proposition that his oral submissions had already consumed 90 minutes. After a few extra brief exchanges, the father said:
Okay. I’m happy to finish up, your Honour
(Transcript 26 June 2020, p.42 line 26).
The complaint about the primary judge rolling her eyes during the father’s submissions must be rejected. The father appeared at the hearing by audio (not visual) link from prison, so he could not have seen it occur himself. His accusation must either be an assumption or reliant upon something he has been told. There is no evidence to establish the truth of the accusation but, even if the primary judge did roll her eyes while listening to him, it would not sustain a complaint of denial of procedural fairness because it did not impinge upon the procedural conduct of the hearing. Judicial inscrutability is a noble aspiration but, because judges are human, it is a standard of perfection not always attainable. No harm is done, at least in civil proceedings without a jury (like these proceedings), if a judge’s demeanour betrays momentary disdain for a hopeless submission – and many of the father’s submissions fell into that category.
Without objection, the father adduced evidence of the eldest child’s past diagnosis with autism spectrum disorder. However, as the father conceded in his affidavit, that evidence “dominated a substantial portion of the proceedings in 2017” and then “featured prominently” in the reasons explaining the interim orders made in December 2017 for the children to live for equal time with him. But by June 2020, when her Honour’s decision was required, events had well and truly moved on. The evidence which might have been material in 2017 was overtaken by the father’s serious assault of the mother in July 2018, his resulting incarceration for it, and her relocation with the children to a different regional area of Victoria in December 2018, as interim orders made in November 2018 allowed her to do. The father could no longer pretend the situation was the same in 2020 as it had been in 2017.
His contention that he was not permitted to “draw reference” to certain evidence is false. The primary judge did not stop him from making submissions about the “historical” evidence he adduced about the children but, as was quite proper, did remind him the interim dispute being entertained in June 2020 was liable to be determined by reference to much more recent and pragmatic evidence.
The father was the first to make submissions. It is correct he was not invited by the primary judge to reply to the submissions made afterwards by the paternal grandparents, the mother, and the ICL, but there was no need for him to be offered the chance to do so. Furthermore, in the absence of any such invitation, he did not ask for permission to make any further submissions.
Aside from the complaint of procedural unfairness, the father complained of judicial bias, both in comments made under this ground of appeal in the Notice of Appeal and in oral submissions before us. The mother did not deal with the alleged bias, but the allegation is easily answered.
The only submissions made in support of the allegation were that an “indication” of bias against the father was evident from: first, the primary judge’s failure to refer in the reasons for judgment to one of the authorities expressly relied upon by the father; secondly, the primary judge’s failure to make the finding of family violence against the mother, for which he advocated; and thirdly, the mistaken findings of fact made by the primary judge.
As to the first point, the relevant authority was Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 (“Esso”). I will shortly return to it in these reasons, but it is sufficient to observe at this point that the failure of the primary judge to advert to an irrelevant authority cannot conceivably vindicate a complaint of bias – either actual or ostensible.
As to the second and third points, they comprise the substance of Grounds 6 and 12 which are yet to be addressed, but the dismissal of those grounds for the reasons which will be given puts paid to any claim of bias.
Privilege (Grounds 1, 2, 3, 4 and 5)
The interim parenting orders made in November 2018 permitted the children to communicate by telephone with the father in prison every third weekend when they visited the paternal grandparents. However, that particular order contained an express notation in these terms:
…IT BEING NOTED THAT the [telephone] calls will be monitored and recorded by the Victorian Department of Corrections.
Accordingly, there could be no doubt that the father and paternal grandparents well knew their telephone conversations, and those involving the children, would be overheard and recorded.
During 2019, the mother issued several subpoenas to the Victorian Department of Corrections requiring it to produce to the Court the recordings of the father’s prison telephone conversations. The objections lodged to those subpoenas by the father and the paternal grandparents were unsuccessful, so the recordings were produced to the Court by the Victorian Department of Corrections. Relevantly, the recordings contained the father’s conversations with both the children and the paternal grandparents.
On 9 October 2019, another judge ordered the paternal grandparents to transcribe the recordings and to then provide copies of the transcript to the mother, the father, and the ICL, together with the details of their claim for privilege in respect of the transcript. Importantly, the order requiring transcription and dissemination was made with the consent of all parties – including the father. There was no complaint about the validity of that order in this appeal.
The paternal grandparents only partially complied with the order. They compiled the transcript, but then unilaterally redacted parts of it and only disseminated the redacted version.
At the hearing before the Senior Registrar in October 2019, the paternal grandparents tendered the redacted transcript in evidence. The mother and the ICL were content to proceed with only the redacted transcript in evidence and abstained from instigating any evidentiary contest over the admissibility of the redacted parts. The father did not object to the tender.
At the hearing before the primary judge in June 2020, controversy erupted over the transcript. Rule 18.10(2)(a) of the Family Law Rules 2004 (Cth) provides that, upon review of a registrar’s orders, the primary judge may receive the same evidence as was before the registrar. In this instance, the father asked the primary judge to reject and ignore the redacted transcript which had been in evidence before the Senior Registrar because he maintained a claim of privilege over it.
The mother’s counsel informed the primary judge that the mother again sought to rely upon the redacted transcript and enquired whether her Honour would rule upon the admissibility of the redacted transcript that day. Her Honour was disinclined to do so and expressed a preference to consider the document and the submissions made about it in a more leisurely way. The admissibility of the redacted transcript was therefore not determined by voir dire at the hearing. Rather, the issue was reserved and so the parties then made submissions about both its admissibility and the outcome of the parenting dispute more generally.
The mother’s counsel alleged the father did not object to the admissibility of the redacted transcript before the Senior Registrar and, since its contents were then known to the parties, submitted that any privilege the father may formerly have had in it was lost and he could not therefore belatedly press any claim for its confidentiality. The father did not deny his failure to object to the admissibility of the redacted transcript in evidence before the Senior Registrar. He only asserted he had not been in possession of a copy of it at that point in time. Section 102H of the Act did not absolutely preclude the admissibility of the redacted transcript at that point, as the father submitted to us.
In the reasons for judgment, the primary judge relevantly found: the father and the paternal grandparents knew their conversations were recorded (at [51]); their conversations “did not go to the provision of legal advice” (at [50]); and the father did not object to the paternal grandparents’ tender of the redacted transcript in evidence before the Senior Registrar (at [52]). The primary judge therefore decided to admit the redacted transcript in evidence.
These grounds of appeal collectively attack the admissibility of the redacted transcript, contending in various different ways that its reception into evidence and the primary judge’s reliance upon it amounted to an error of law, thereby vitiating the ultimate decision. However, all of the grounds must be rejected because each of the findings made about the redacted transcript was undoubtedly correct and justified its admission in evidence.
The father asserted he enjoyed privilege in the recorded conversations, which he had neither intentionally nor accidentally waived, and so the transcript of the conversations (redacted or not) was inadmissible in evidence over his objection.
The privilege was said to arise under s 120 of the Evidence Act 1995 (Cth) (“the Evidence Act”), which provides:
(1)Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:
(a)a confidential communication between the party and another person, or
(b)the contents of a confidential document (whether delivered or not) that was prepared, either by or at the direction or request of, the party;
for the dominant purpose of preparing for or conducting the proceeding.
The manifest purpose of s 120 of the Evidence Act is to furnish an unrepresented litigant with the same style of privilege enjoyed by a legally represented litigant (under s 118 and s 119 of the Evidence Act) over confidential communications and documents prepared for the dominant purpose of preparing for or conducting legal proceedings. At all material times, the father was not legally represented in the proceedings before the primary judge, though he was legally represented in the parallel criminal proceedings.
In respect of s 120 of the Evidence Act, the terms “confidential communication” and “confidential document” are defined (s 117 of the Evidence Act).
Communications are confidential if one or other of the privy persons is under an express or implied obligation not to disclose the content.
Documents are confidential if, in the circumstances when they are prepared, either the person who prepared them or the person for whom they were prepared was under an express or implied obligation not to disclose the content.
Of course, the conversations between the father and the children could not possibly attract the privilege upon which the father relied, as the primary judge correctly noted (at [52]), because their conversations were not for the dominant purpose of preparing for or conducting either the civil or criminal proceedings. They were merely social calls.
Only the conversations between the father and the paternal grandparents could potentially attract the privilege. The father wrongly assumed the obligation of confidentiality over his conversations with his parents imperatively sprang from their agency under the authority of the power of attorney he granted them pursuant to the Powers of Attorney Act 2014 (Vic), which statute provides the attorney must ordinarily not disclose confidential information gained while acting in that capacity under the power (s 63(e)).
First and foremost, the subject conversations between the father and the paternal grandparents did not furnish the paternal grandparents with information in the exercise of their powers as his attorneys, so as to render it confidential. They were certainly not acting as his attorneys with respect to either the litigation under the Act or the criminal prosecution. They did not “represent” him in the proceedings before the primary judge, as the father wrongly submitted, because they were separate parties, as the primary judge noted (at [11]). In fact, the paternal grandparents told the primary judge they opposed the father’s application in material respects (at [57], [89]-[90]), so it was impossible for them to represent him if their litigious interests did not align. The father spoke for himself during the hearing before the primary judge. The conversations between the father and the paternal grandparents, which generally canvassed what could transpire in the ongoing litigation and what they perceived to be the misfortune then permeating their lives, did not imbue their discussions with the character of preparation for the conduct of litigation.
Nor, as the primary judge correctly found, were the paternal grandparents acting as the conduits of legal advice or instructions being passed between the father and his lawyer in the criminal proceedings. The paternal grandparents did not even know the father was intending to plead guilty to the criminal charges until his pleas were actually entered before the State court in May 2019, so they were oblivious to any communications between the father and his lawyer prior to then. Afterwards, no confidentiality settled upon any discussion about the evidence or submissions which the father wanted adduced or made to the County Court of Victoria to mitigate the sentences imposed upon him for the offences, because it was all willingly made public in open court.
While the father and paternal grandparents might have preferred that their discussions were kept private, with the benefit of hindsight borne of their embarrassment after reading the transcript, no legal, ethical or moral obligation of confidentiality was imported by the surrounding circumstances. Without such an obligation, the privilege does not arise.
Given the limited ambit of the privilege conferred by s 120 of the Evidence Act, the following written and oral submissions made by the father to the primary judge were much too broad and were plainly wrong:
…any communication I have made, with anyone, for the dominant purpose of preparing for or conducting any of the proceedings on foot at the time would attract privilege…
…
…phone calls between myself and the [paternal grandparents] occurred in the context of a confidential communication on each and every occasion that we spoke…
…
…any discussion regarding my guilt or innocence [for his assault committed upon the mother in July 2018] with my parents would clearly form part of a confidential communication and be directly relevant to both criminal and family court proceedings; and any communication of this nature (by any party) should be considered privileged…
…
…the preparation of documents, every conversation I have with my parents (and in particular where I discuss the children, the [mother], proceedings, potential outcomes of proceedings, etc.) can all be relevantly inferred as “preparing or conducting the proceeding”…
(Written submissions of the father dated 2 December 2019, p.2–4) (Emphasis added)
…There is a relationship between myself and my parents in these proceedings that has been clearly established due to their obligations as a power of attorney and relevantly as a conduit for legal advice…
…
…It is submitted that any conversation with my parents where we speak about [the mother], or any of the children, can reasonably have been inferred to be related to the criminal matters or Family Court proceedings.
(Transcript 26 June 2020, p.15 lines 33–47) (Emphasis added)
Even if it was possible for the father to have enjoyed privilege in the conversations he had with the paternal grandparents, he acted inconsistently and thereby lost the privilege (s 122(2) of the Evidence Act).
The father and the paternal grandparents were both parties to the proceedings when the interim parenting orders made in November 2018 expressly forewarned them that the father’s telephone conversations from prison would be monitored and recorded. Their subsequent telephone conversations in such knowledge strongly suggests they dispensed with any demand for privacy. By speaking openly, they acted in a way which was inconsistent with the maintenance of any claim of privilege over the contents of their conversations.
Although Bellew J concluded otherwise in criminal proceedings (R v Rogerson; R v McNamara (No. 31) [2016] NSWSC 195), that situation is distinguishable. There, the accused was using a third person as a conduit to pass information between him and his lawyer, the confidentiality of which information he certainly wanted to preserve and, while he knew the prison authority would record his conversation with the third person, he had no choice but to submit to the unwanted intrusion. Here, there were two significant differences: the father was not consulting with a lawyer and using the paternal grandparents as the conduit; and he was not obliged to submit to the electronic surveillance of telephone conversations because the paternal grandparents visited him in person.
Even if the father’s situation was considered to be analogous, the confidentiality of his conversations with the paternal grandparents was overtaken by subsequent events.
In October 2019, the father consented to an order requiring the paternal grandparents to transcribe the telephone conversations and to then circulate the transcript between the parties. By giving his consent to an order in those terms, the father acted inconsistently with his maintenance of a claim for privilege over the contents of the transcript. The order allowed for the paternal grandparents, but not the father, to circulate details of their claim for privilege over the transcript. The only logical inference is that the limits of the paternal grandparents’ claim for privilege were reflected in the voluntary redactions they made to the transcript and the father did not then press his own claim of privilege.
Then, by not objecting to the admissibility of the redacted transcript when tendered in evidence before the Senior Registrar, the father again acted in a way which was inconsistent with his maintenance of any claim of privilege. Even if he did not then possess a copy of the transcript, as he alleged, he must be presumed to have abandoned his claim for privilege over those parts of it which were not redacted and which he was content to allow into evidence. Of course, by tendering the redacted transcript in evidence, the paternal grandparents acted inconsistently with any claim for privilege in its redacted form.
The various authorities to which the father referred, both in submissions to the primary judge and in the appeal, did not advance his cause.
The High Court held in Esso that claims of legal professional privilege in relation to documents tendered in evidence at trial are regulated by the dominant purpose test under the Evidence Act, but the common law still applied to disputes over the antecedent production of documents under discovery and, in that regard, the dominant purpose test should also prevail. Here, the dichotomy between the obligations of discovery at common law and the admissibility of evidence under the Evidence Act was irrelevant. The question before the primary judge was purely the admissibility of the redacted transcript in evidence.
The High Court held in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 that a certain section of the Trade Practices Act 1974 (Cth), under which the production of documents could be compelled, did not abrogate any legal professional privilege which attached to such documents. Here, there was no apparent tension between two statutes regulating the production and suppression of documents. Long before the hearing, the recordings were produced, the transcript was prepared, the redacted transcript was circulated, and it was consensually adduced in evidence before the Senior Registrar, so the only question for the primary judge was whether, despite such history, s 120 of the Evidence Act precluded its admissibility in evidence at that point.
The Full Court of the Federal Court in Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217, held the common law extended claims of privilege to documents prepared for a client by a third party if it was intended that the documents would be provided to a lawyer for the purpose of obtaining legal advice. Subsequently, s 118(c) of the Evidence Act was amended to similarly extend the privilege to such documents sought to be tendered in evidence. Here, the document in question – the redacted transcript – was not prepared by the father at all. It was prepared by the paternal grandparents, but not for the purpose of the father obtaining legal advice, nor for him to conduct either the criminal proceedings or the proceedings before the primary judge. It was prepared pursuant to a consent order and voluntarily used by the paternal grandparents in evidence to press their own case.
The primary judge did, however, err at law when discussing the admissibility of the transcript but, since the error did not cause any miscarriage of justice and did not have any influence on the result, it can be safely disregarded (Conway v The Queen (2002) 209 CLR 203 at 207-208, 217, 219–220, 232, 244; Lane & Nichols (2016) FLC 93-750 at [72]–[81]). For reasons already given, there is no doubt the redacted transcript was correctly received in evidence.
The error concerned the application of s 69ZX(4) of the Act, though the error was not as wide as the father asserted. The primary judge observed, correctly, that no privilege attached to the father’s conversations with the children (at [52]), but then incorrectly went on to observe how s 69ZX(4) of the Act rendered the conversations between the father and the children admissible in evidence, as it was in their best interests to receive it. Contrary to the father’s contention (Ground 4), her Honour did not purport to say the conversations between the father and the paternal grandparents were also admissible on that basis.
Section 69ZX(4) of the Act only permits the court to override the privilege which attaches to certain information in very limited circumstances as, otherwise, s 134 of the Evidence Act renders the privileged information inadmissible in evidence.
Section 69ZX(4)(a) allows journalist privilege under s 126K(1) of the Evidence Act to be overridden, but that exception did not apply here.
Section 69ZX(4)(b) mandates the court “must not direct” that certain evidence “not be adduced” by reason of the application of the “professional confidential relationship privilege” established under Div 1A of Pt 3.10 of the Evidence Act 1995 (NSW), if the reception of such evidence would be in the child’s best interests (reg 12CE and Sch 9A of the Family Law Regulations 1984 (Cth)). But that exception did not apply here either because it was not contended that any “professional confidential relationship privilege” under NSW legislation attached to the father’s conversations with the children in Victoria. The father’s claim for privilege was only ever pitched as being “client legal privilege” under Div 1 of Pt 3.10 of the Evidence Act.
It should not be overlooked that these grounds of appeal, aside from their lack of technical merit, were pointlessly pursued. The primary judge only made tangential references to the redacted transcript in the reasons for judgment and only then to infer the father’s lack of parental insight. But those inferences were largely irrelevant to the outcome of the interim parenting dispute, at least as between the parents, because the essential facts were not controversial.
There was no contest the children would continue to live with the mother and it was inevitable she must have sole parental responsibility for them. Her assault by the father in July 2018 displaced the presumption of equal shared parental responsibility but, in any event, she suffered from post-traumatic stress disorder as a consequence of the assault and could not face the prospect of dealing with the father. Apart from the State family violence order precluding the father from contacting the mother, his separate application for a State family violence order against her to preclude her from contacting him was still pending before the State court, so neither party wanted any contact with the other. It was virtually impossible for them to amiably confer over important child-related issues, as the law would require if they shared parental responsibility (s 65DAC of the Act). Importantly, at the commencement of the hearing, the father told the primary judge he was content for the mother to retain sole parental responsibility for the children on an interim basis.
Given the father’s imprisonment for the foreseeable future, there was no chance of the children spending any time with him if the paternal grandparents were unwilling to convey them to and from the prison for such visits, and they told the primary judge they were unwilling (at [57] and [89]). They were also unwilling to facilitate the children’s telephone communication with the father (at [57] and [90]). There can be no doubt that is correct because the paternal grandfather submitted this to the primary judge:
…We are no longer seeking to facilitate weekly phone calls with the boys, and we are not seeking phone calls ourselves from – with the boys, and we will not accept any calls from [the father] when the boys are in our care…
…
…We don’t condone violence of any kind, and our relationship with [the father] has been increasing[ly] strained since [his assault of the mother], particularly since last October, when we read the transcripts…
…
…After reading through telephone call transcripts, we do not want to continue facilitating these calls. In addition, we will not accept any calls from [the father] when the boys are in our car[e]…
…
…It was not until 31 May 2019 at the committal hearing that we first learned that [the father] was to plead guilty to four of eight charges. To make it clear, your Honour, we no longer wish to facilitate the children visiting the father. We are not seeking to facilitate any phone calls between [the father] and the boys. We are not acting on behalf of [the father] in attempting to obtain more time with the children…
(Transcript 26 June 2020, p.45 line 2 to p.51 line 20)
In such circumstances, the nature of the father’s application for interim parenting orders was essentially futile, so reception of the redacted transcript in evidence made no tangible difference to the outcome.
Nor did the redacted transcript have any bearing upon the dismissal of the father’s ancillary applications to annul the costs order or to compel the mother’s payment of $100,000 to him.
The dismissal of the paternal grandparents’ application for orders requiring the children to intermittently spend time with them, upon which result the redacted transcript arguably did have some bearing (at [58] and [63]), is not the subject of an appeal by them.
Family violence (Grounds 6, 7 and 8)
These grounds relate to the past occurrence of “family violence” between the spouses. In effect, the father contended the primary judge erred by not positively finding the mother had perpetrated family violence upon him (Ground 6), erred by not binding the mother with an injunction restraining her from denigrating him to the children (Ground 8), and erred by finding his behaviour amounted to “ongoing harassment” of the mother (Ground 7).
The first proposition is easily discounted. The father conceded the children must live with the mother and it was appropriate for her to have sole parental responsibility for them. The mother had the protection of a State family violence order against the father and he had the reciprocal protection of an interim State family violence order against her. He is in prison and there is no chance of the parents ever being in close proximity during the currency of the interim parenting orders. Therefore, the mother’s alleged perpetration of “family violence” upon the father, which she vigorously denied, had no relevance to the outcome of the dispute over interim parenting orders. No finding in respect of that issue could possibly affect the children’s residence with the mother or their inability to spend time or communicate with him. Consequently, the primary judge was not obliged to make the finding of “family violence” the father sought (even if a finding on untested evidence had been possible) and so Ground 6 must be rejected.
The father’s allied assertion of error by the primary judge refusing to make an injunction restraining the mother from denigrating him to the children (Ground 8) must also be rejected. Her Honour declined to make such an order because there was no evidentiary basis for it (at [91]). While the father may genuinely believe the mother denigrates him to the children, she denied it. This ground wrongly assumes the primary judge was obliged to accept his untested evidence in preference to the mother’s but, of course, that was not so.
In any event, the refusal to make a non-denigration injunction against the mother was unrelated to her alleged commission of family violence. The father alleged the mother’s family violence towards him took the form of “financial abuse”, which conduct (even if true) could not possibly be controlled or inhibited by an injunction restraining her denigration of him to the children. The father’s additional assertion that the mother’s denigration of him (in the children’s, but not his, presence) itself amounted to her perpetration of family violence upon him is rejected as specious. The definition of “family violence” under the Act (s 4AB), even at its widest, could not support a finding to that effect, even if the father’s evidence was accepted. Ground 8 must therefore be rejected.
Ground 7 attacked the validity of the primary judge’s finding expressed in these terms:
69.The father’s evidence and submissions contained ongoing criticism of the mother and allocation of blame to her for his predicament, including the extraordinary step taken by him in October 2019, in seeking an ex parte intervention order against her. The father confirmed at the hearing of this review application, that he is proceeding with that matter, seeking a final order. His lack of insight is breathtaking and very concerning. That concern arises in particular because actions such as the seeking of the intervention order on the grounds alleged are an ongoing harassment of, targeting of, and obsession with the mother, who is already fearful for her ongoing safety.
The facts which lay behind that finding make it impregnably correct.
The father was remanded in custody in July 2018 following his assault of the mother and he will not be released on parole before July 2021 at the very earliest. In September 2019, the father applied for and, in October 2019, he was granted an ex parte interim family violence order by the Magistrates Court of Victoria against the mother. He alleged she had subjected him to “financial abuse” and denigrated him to the children. At the hearing before the primary judge in June 2020, the father conceded the mother was defending his application for the State family violence order and the contested application was back before the State court a month afterwards in July 2020.
The father had no logical answer for this question: why would he be seeking a family violence order against the mother to restrain her from contacting him when she was frightened of him, she wished to have nothing at all to do with him, and he was protected from her in prison? The most plausible inference, which the primary judge permissibly drew, was that the father was using the forensic process to harass her. Ground 7 is also rejected.
Error of law (Ground 10)
This ground alleged the primary judge erred by failing to “appropriately consider” the best interests of the children.
The father conceded the primary judge made express reference to the statutory provisions of Part VII of the Act which guided the decision, but asserted the primary judge made “no connection” between the evidence and such statutory provisions. That bold assertion hinged upon the primary judge’s acceptance of the particular evidence emphasised by the father to the effect that the children would not be exposed to any risk of harm by spending time or communicating by telephone with him and the quality of their relationships with him.
It is unnecessary to traverse such evidence because it made no difference at all to the result. As already explained, the paternal grandparents expressly withdrew their support for the father and refused to facilitate the children’s prison visits or telephone calls with him. It did not therefore matter whether or not the children’s best interests would be served by that form of face-to-face or telephonic contact with the father. It could not happen.
The father maintained an application for him to have telephone communication with the children without the paternal grandparents’ help, but that would entail telephone calls being made directly to or from the mother’s home, which she refused to facilitate after reading the transcript of the father’s telephone calls with the children during 2019.
The father conceded in the appeal that he “could have done better” during those telephone calls with the children, whereas the mother and the ICL both asserted the content of his conversations with the children was so inappropriate that continuation of such telephone communication would be inimical to their interests. Given the findings about the father’s “breathtaking” lack of insight (at [67] and [69]) and how the children’s communication with the father compromised the mother’s state of mental health (at [75], [83] and [84]), the primary judge agreed with the mother and the ICL that such telephonic communication should not occur (at [93]). That conclusion was plainly open on the available evidence and did not entail any error of law. Even the paternal grandparents could envisage the potential harm in facilitating telephone calls between the children and the father, so his expectation that the mother should instead be ordered to do so was unrealistically audacious.
Errors of fact (Ground 12)
This ground of appeal alleged the primary judge made “several” errors of fact. Those enumerated in the Notice of Appeal and the Summary of Argument were as follows:
a)The primary judge incorrectly attributed to the father the reasons he advanced for why the property settlement hearing, fixed in January 2019, should be adjourned (at [31]).
Whether or not that actually was an error was irrelevant to the hearing in June 2020 about interim parenting orders and the legal costs associated with the dispute over parenting orders. Anyway, the primary judge correctly recorded the parents agreed to property settlement orders in January 2019 (at [32]).
b)The father appealed from the interim parenting orders made in November 2018 and unsuccessfully applied to stay the orders pending the appeal, but he did not appeal from the stay refusal, as the primary judge said he did (at [33]).
It was a mistake to say the father appealed from the stay refusal, because he did not. His appeal from the substantive orders was dismissed in June 2019. However, the mistake was inconsequential.
c)The primary judge found the father admitted to the paternal grandfather during a telephone call that he had told the children the mother would be devastated if she was forced by court order to move back with them from north-eastern Victoria to northern Victoria, near to the paternal grandparents (at [58] and [63]).
The father asserted that was a mistake because the mother led evidence in her affidavit that it was the children who would be devastated if they had to move back to northern Victoria. Indeed, the mother did lead such evidence about the children, but the father did not prove that the finding made about the mother, based on his own admission to the paternal grandfather (presumably verified by the text of the redacted transcript), was wrong.
d)The primary judge found the father spoke to the children about their prospective move back to northern Victoria in “encouraging” terms (at [63]).
The father asserted that was a mistake because there was no evidence he did so, even though he admitted he spoke encouragingly about the children visiting him in prison. Even if it was impossible to imply from his recorded conversations with the children that he spoke encouragingly about them moving back to northern Victoria, the mistake was inconsequential.
e)The primary judge found the mother’s application for parenting orders was not motivated by her “convenience” (at [67]).
The father asserted that was a mistake because the mother adduced evidence about her preference for the children to spend their weekends with friends and maternal family members, rather than with the father and the paternal grandparents. Even so, that evidence does not preclude a finding that the mother’s application was not motivated by her own convenience. There was no mistake.
f)The primary judge found the mother’s state of mental health was “seriously compromised” by the children’s communication with the father (at [75]).
The father asserted that was a mistake because there was no evidence of it, but the contention is rejected. The finding was imputed from the evidence of a psychologist who diagnosed the mother was suffering post-traumatic stress disorder as a result of her assault by the father in July 2018 and who opined the reduction of the time spent by the children with the paternal grandparents would “likely assist [the mother] psychologically”. As was open, the primary judge accepted that evidence (at [75]-[84]) and the inference was available. There was no mistake.
g)The primary judge found there had been no recent opportunity for the paternal grandparents to “engage inappropriately” with the children (at [93]).
The father asserted that was a mistake because there was no evidence the paternal grandparents had ever engaged inappropriately with the children, but the submission is rejected. The text of the redacted transcript shows otherwise. In submissions before the primary judge, the paternal grandfather conceded the transcript “did not paint him in a good light”, which the primary judge noted (at [58]). The children’s telephone calls with the father occurred in the paternal grandparents’ presence and, given the content of those calls, the primary judge found the paternal grandparents “did not always act protectively towards the children” (at [63]). The finding was open. The father actually admitted that the paternal grandparents should have terminated his calls with the children on occasions. There was no mistake.
Any mistake identified by the father had no bearing upon the ultimate result and can therefore be disregarded as being immaterial (De Winter and De Winter (1979) FLC 90-605 at 78,092).
Weight (Ground 9)
This ground asserted the primary judge gave insufficient weight to the views of the children.
In the reasons for judgment, the primary judge said this:
89.The children have, on the mother’s evidence, expressed no wish to attend at the prison to see the father. The paternal grandparents are not prepared to facilitate same. The mother and the Independent Children’s Lawyer oppose any such order.
According to the mother’s evidence and the paternal grandparents’ submissions, that was all certainly true, so there was no mistake of fact.
The father’s point is that the primary judge ought to have reposed more weight in other evidence he had adduced of the children telling him, during telephone conversations, that they missed him and wanted to visit him at the prison. The father also relied upon the evidence of the wish expressed by two of the children to the Family Consultant to see the father in prison, though the primary judge noted (at [65]) that wish was expressed by them before they knew of the father’s admission that he was responsible for the horrific assault upon the mother.
Even though the children learned the father was imprisoned for assaulting the mother, it would not be particularly surprising if they still loved and missed him. Alternatively, nor would it be surprising if the children told him they missed him and wanted to see him, as they realised he would like to hear such expressions of endearment. On untested evidence in an interim hearing, the primary judge was not obliged to accept that the children’s expression of sentiments to the father were entirely truthful and reliable.
Regardless, the father acknowledged the children could only realistically spend time or communicate with him by telephone with the active help of the paternal grandparents, which they were unprepared to give. Nor was the mother willing to help. It did not matter, therefore, how earnestly the children wanted to stay in contact with the father because it was impossible. The children’s expressed views consequently fell away as a material consideration and the argument under this ground about the weight attributed to the evidence on that topic was otiose.
As an aside, the father expressly acknowledged the paradox of pressing his grounds of appeal by relying upon evidence of what the children said to him during recorded telephone calls, which evidence he sought to exclude under other grounds of appeal (Grounds 1, 2, 3, 4 and 5).
Costs order (Ground 13)
The primary judge’s affirmation of the orders made by the Senior Registrar on 13 November 2019 means the father remains liable to the mother for one-half of her fixed costs incurred in the contested dispute which resulted in the interim parenting orders made on 21 October 2019.
This ground of appeal relates to that aspect of the primary judge’s decision.
The costs order received no attention at all in the hearing before the primary judge so, in the reasons for judgment, her Honour said:
94.No party placed any further material before the Court as to the question of costs. That which is before the Court was that which was before Senior Registrar Fitzgibbon as referred to in his Reasons for Judgment (costs) of 13 November 2019. The quantum sought by the mother is reasonable. The awarding of costs is a discretionary exercise of the Court. The relevant legislation is, in particular, s 117(2A) of the Act which guides the exercise of that discretion. The matters of material relied upon and statements of fact are as set out in the Senior Registrar’s judgment. The father and the paternal grandparents sought a further interim hearing in October 2019 in relation to which they were unsuccessful and on a re-hearing are again unsuccessful. Their conduct has caused unnecessary costs to be incurred by the mother who has limited financial ability.
The accuracy of those observations was not challenged in the appeal.
In the Case Outline the father filed at first instance, he made no submission at all in relation to the contested costs order. The order for which the father originally applied to annul the costs order was entirely omitted from his revised minute of proposed orders, annexed to his Case Outline. It was an aspect of the dispute which the father ignored during the hearing.
This ground of appeal contended the primary judge did not afford the parties “an opportunity to be heard regarding costs”, but that is simply false. The father was allowed to make whatever submissions he liked, but he chose not to make any submission at all about the costs order made by the Senior Registrar. Neither did the paternal grandparents or the mother.
Once the parties’ submissions were complete, the primary judge asked the father some clarifying questions about his proposal for the mother to pay him $100,000 from the undistributed trust funds. But even when the discussion turned to the outstanding costs applications being pressed by the mother, which she hoped would be satisfied from the trust funds, the father still omitted to make any submission about the challenged costs order made by the Senior Registrar.
No error was demonstrated in the primary judge’s decision to leave the Senior Registrar’s costs order in place.
Conclusion and costs
In my view, the appeal should be dismissed.
In that event, the mother sought an order that the father pay her costs of the appeal in the sum of $14,232.15, which sum she conceded represented her indemnity costs. Her party/party costs at scale were $11,931.60. Commendably, the mother acknowledged the limitations of her claim for indemnity costs.
The father’s claim of impecuniosity is not as strong as he asserted, since funds are still held in trust for distribution between the spouses pursuant to the property settlement orders made between them in January 2019. The appeal was devoid of merit and was wholly unsuccessful. The father should pay the mother’s costs of and incidental to the appeal in the lesser party/party sum.
For those reasons, I propose orders dismissing the appeal and requiring the father’s payment of the mother’s costs in the fixed sum of $11,931.60, which amount should be paid to the mother from the father’s share of the trust funds.
Tree J
I agree with the reasons of and the orders proposed by Austin J.
Aldridge J
I also agree.
The orders of the Court therefore are:
(1)The appeal is dismissed.
(2)The appellant shall pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $11,931.60, which sum is to be paid from the appellant’s share of the trust funds held for the parties in National Australia Bank account number …96.
I certify that the preceding one-hundred and fifteen (115) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Aldridge, Austin & Tree JJ) delivered on 27 November 2020.
Associate:
Date: 2 December 2020
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