Moon and Moon (No. 2)
[2022] FedCFamC1A 69
•18 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Moon & Moon (No. 2) [2022] FedCFamC1A 69
Appeal from: Moon & Moon [2021] FedCFamC2F 418 Appeal number(s): NAA 81 of 2021 File number(s): BRC 10802 of 2020 Judgment of: TREE J Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from interim parenting orders, refusal of disqualification and dismissal of interim applications – Whether there has been a denial of procedural fairness – Apprehended bias – Adequacy of reasons – Whether the primary judge failed to take into account a relevant consideration – Whether decision was unjust or plainly wrong – Where the grounds of appeal were incompetent or lacked particularity – No appealable error established – Appeal dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the application sought to strike out evidence relied upon by the primary judge, and to refer and publish the proceedings – Where the Full Court has no power to do so – Application dismissed.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35 Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 52 Date of hearing: 12 May 2022 Place: Cairns (via video link) The Appellant: Litigant in person Counsel for the Respondent: Ms Pendergast Solicitor for the Respondent: WP Lawyers Counsel for the Independent Children's Lawyer: Ms Kirkman-Scroope Solicitor for the Independent Children's Lawyer: Smithson Lawyers ORDERS
NAA 81 of 2021
BRC 10802 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MOON
Appellant
AND: MS MOON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 28 April 2022 is dismissed.
2.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moon & Moon (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Mr Moon (“the father”) appeals from a number of orders made by the primary judge on 19 November 2021. They comprise interim parenting orders relating to the parties’ three children, the dismissal of both his Application in a Case which sought interim parenting orders, and an Application for Review of a decision of a senior registrar, and the primary judge’s refusal to recuse herself from further hearing the proceedings.
Ms Moon (“the mother”) and the Independent Children’s Lawyer (“ICL”) both oppose the appeal.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The parents commenced their relationship in 2007, were married in December 2009 and separated on a final basis in December 2019. Their three children are presently aged nine, six, and four.
Following separation, the children lived with the mother and initially spent time with the father during the day, before commencing to spend overnight time with him on weekends. Following mediation, this time increased to the point where the children spent four nights and one afternoon per fortnight with the father.
In August 2020, a Temporary Protection Order was made in the Suburb A Magistrate’s Court listing the mother as the respondent and the father as the aggrieved.
On 11 August 2020, the father commenced these proceedings.
On 3 February 2021, the father filed an Application in a Case seeking orders for equal shared parental responsibility other than in respect of education and health matters, and that the children be enrolled at a particular school and day care. The mother responded to the application seeking that she have sole parental responsibility and that the children continue to be home-schooled.
On 7 July 2021, the parties’ competing interim applications came before a senior registrar for hearing, however those applications were adjourned on the application of the mother and the ICL in order to await the publication of a family report. The senior registrar made interim orders in the same terms as the then current parenting arrangements.
On 14 July 2021, the father filed an application to review the senior registrar’s decision. In that application he also sought that leave be granted to him to arrange a private family report, and that the children spend equal time with each parent. That application was listed before the primary judge on 21 July 2021, on which occasion her Honour adjourned it for hearing on 29 September 2021.
Next, on 16 July 2021, the father filed an Application in a Case seeking that the ICL be discharged, the solicitor for the mother be restrained from acting further in the proceedings, and that he be given leave to privately arrange a family report.
On 30 July 2021, the primary judge heard and dismissed the father’s application to review a registrar’s decision on 26 May 2021 to grant a divorce order in relation to the parties, which order became absolute on 27 June 2021. It was at that hearing that the father first raised issues of apprehended bias.
On 28 September 2021, a family report was filed in which the report writer made recommendations for the children to live with the mother and spend alternative weekends with the father. The father had not attended the family report interviews and thus the report was limited by that factor.
On 29 September 2021, the primary judge heard all of the pending interim applications. At that hearing, the father also raised allegations that her Honour had shown apprehended bias, as had the ICL, the mother’s solicitor and the family report writer.
On 19 November 2021, the primary judge delivered her decision arising from the 29 September hearing. Her Honour’s concurrently pronounced orders provided for interim parenting arrangements in accordance with the recommendations of the family report. They also required the father to undergo a psychiatric assessment and submit to CDT alcohol testing. Lastly, her Honour dismissed the father’s application to review the registrar’s decision filed 14 July 2021 and his Application in a Case filed 16 July 2022. Although not specifically the subject of an order, the primary judge also refused to recuse herself from further involvement in the proceedings. All of these are the subject of this appeal.
Subsequently on 15 December 2021, the primary judge transferred the matter to the Federal Circuit and Family Court of Australia (Division 1) and it is currently in a judicial docket awaiting a listing for trial.
APPLICATION IN AN APPEAL
On 28 April 2022, the father filed an Application in an Appeal seeking that the family report “be struck from evidence” in the proceedings, that the proceedings be referred to the Director of Public Prosecutions and that he be given leave to publish the proceedings.
There is no power in the Full Court to “strike out” material filed in proceedings, except perhaps, upon the success of an appeal challenging its admissibility. Insofar as this application sought to exclude the family report from consideration in the appeal, s 35(a) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Act”) positively mandates that a court exercising appellate jurisdiction “must have regard to the evidence given in the proceedings out of which the appeal arose”.
As to the other matters, even assuming that the Full Court has power to make such orders, no basis for doing so here is established on the evidence. Particularly there is no reason to suspect the commission of any crime, and no adequate justification for permitting the father to publish anything other than the anonymised judgments of the court in this matter.
The Application in an Appeal filed 28 April 2022 will be dismissed.
THE APPEAL
The 12 grounds of appeal contained in the Notice of Appeal filed 3 December 2021 are not competent, and lack particularity. Nonetheless it is convenient to assume their competence and to address them in the same groupings as outlined in the ICL’s Summary of Argument.
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Therefore an appeal is not an opportunity for the appellant to re-run their case in an attempt to convince the appeal court that, absent appealable error of the kind identified in House v The King, it should nonetheless come to a different conclusion.
Bias – Grounds 4 & 11
These grounds provide:
4.The learned Trial Judge was biased to have specifically ordered Family Consultant Ms B as the Family Consultant with reasons provided in an Affidavit filed 28 December 2020.
…
11.The Learned Trial Judge is biased as contested in the proceedings with apprehended bias including with words often being used “difficulty” for the applicant and not for the respondent or ICL. Despite the Oral request for recusal on 30 July 2021 based on alleged apprehended bias and on 29 September 2021 Her Honour proceeded to determine the matter and deferred Judgement delivery to 19 October 2021 being after 28 days from the dismissed application of Division 1 of the FCFCoA to dismiss the application for Review of a Registrar’s on 10 September 2021 for non-filing of a Draft Notice of Appeal, Application in an Appeal and Supporting Affidavit of 24 August 2021.
(As per the original)
In these grounds, the father alleges that there is an apprehension of bias by the primary judge towards him, rather than contending any error by the primary judge in refusing to recuse herself. However I am prepared to construe Ground 4 as if that is what was intended, although Ground 11 appears to be a new complaint.
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is “whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]).
The inquiry comprises two steps: first, the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters, and secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]).
In Ground 4 the father says that the primary judge showed bias by specifically ordering Ms B as the Family Consultant to conduct the Child Inclusive Conference. In Ground 11 the father submits that her Honour showed bias in the hearing by using the words “difficulty” in relation to consequence of the father not attending the family report interviews, but not in respect of the position of the mother or the ICL.
Neither matter could lead a fair minded lay observer to reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the resolution of the matters for determination. The primary judge did not err by refusing to recuse herself, nor is apprehended bias otherwise established.
These grounds fail.
Failure to afford procedural fairness – Grounds 1, 6, 7, 9
These grounds are as follows:
1.The learned Trial Judge on 29 September 2020 failed to afford the appellant procedural fairness by placing the burden on the appellant to disprove allegations of alcohol abuse and instructed the appellant to confer with the respondents Solicitor to provide an Undertaking to the Court to this effect.
…
6.The learned Trial Judge on 21 July 2021 did not allow procedural fairness. There has been a miscarriage of justice in that the matter was not heard and adjudicated being a Review of a Registrar’s Decision, filed 14 July 2021 for Orders (including Child Welfare Orders) of a Senior Registrar 7 July 2021, but adjourned on 21 July 2021. (A) The learned Senior Registrar on 23 February 2021 acted upon a wrong principle as an urgent Application in a Case was to be heard for schooling and a Family Report was Ordered as requested by the ICL. (B) The learned Senior Registrar on 22 March 2021 failed to afford the appellant procedural fairness where the appellant had filed Written Submissions for the Interim Hearing and Application in a Case. The appellant had filed and served a Short Minute of Orders Sought as Ordered 23 February 2021 and the other parties did not comply. (C) The learned Senior Registrar on 7 July 2021 decision was plainly unjust as the Children were ordered to live with the respondent, inconsistent with previous Family Violence orders. The Expert Evidence of Ms B, relied upon by the Senior Registrar, contains errors of fact. The Senior Registrar erred in his discretion that there is an issue about the parents being able to co-parent where the appellant is making genuine efforts to do so despite the Domestic and Family Violence. The learned Senior Registrar failed to take into account a material consideration that the current arrangement is only what the respondent will allow since reverting to the mediated agreement. A second time, the appellant had filed and served a Short Minute of Orders Sought as Ordered 22 March 2021 and the other parties did not comply.
7.The learned Trial Judge on 30 July 2021 for the Divorce Proceedings … failed to provide procedural fairness by relying on submissions from the Respondent, first. Her Honour made an error of law that the Divorce Order would be made absolute “as day turns to night” when submissions which were not received requested that adequate arrangements be made in all circumstances for the care, welfare and development of the Children before taking effect (Decree Nisi). The Review of Divorce at 30 July 2021 was dismissed and cannot be appealed where there has been suppression of evidence and a gross miscarriage of justice. The defended Divorce Proceedings were set before a Registrar on 26 May 2021 which should have been set before a Judge as they were defended. On Review of the Divorce Order made, it was listed before a Senior Registrar who noted should have been listed before a Judge on 7 July 2021 and made Orders to this effect that it be listed to [the primary judge] on 30 July 2021 for hearing after cautioning me to this effect.
…
9.The Learned Trial Judge on 29 September 2021 took submissions from the Respondent Solicitor first, then the ICL and then the Applicant where the Respondent Solicitor and ICL had not complied with the Rules of the Court to file and serve Case Outlines at least 48 hours (2 days) before the hearing thus not affording the Appellant procedural fairness.
(As per the original)
These grounds are almost impossible to understand, but nonetheless may be shortly disposed of. That is because there is simply no reason to suspect that there was any impediment whatsoever placed on the father as to the presentation of his case before the primary judge, nor can I otherwise discern any failure by the primary judge to afford the father natural justice. Moreover, even if there were some failure by the primary judge to afford the father procedural fairness as he contends, I am persuaded that the outcome could have been no different (Stead v State Government Insurance Commission (1986) 161 CLR 141) since at best, the matters complained of were wholly peripheral to the issues determined by the primary judge.
These grounds all fail.
Inadequate reasons – Grounds 8 & 12
These grounds assert:
8.The learned Trial Judge on 29 September 2020, 21 July 2021 and 30 July 2021 has not provided reasons for the Decisions. Despite the Appellants request to Chambers this has been refused.
…
12.The Learned Trial Judge on 29 September 2021 with delivery of Judgement provided inadequate reasons on 19 November 2021 and/or did not take into account material considerations of evidence including the Subpoena to Department Child Safety, Youth Justice and Multicultural Affairs, Queensland Police and evidence as provided in the Case Outlines in accordance with Court rules by the Appellant.
(As per the original)
The obligation to adequately expose the reasoning for a decision is well established (Bennett and Bennett (1991) FLC 92-191 at 78,266).
Plainly the primary judge did produce reasons for her orders pronounced 19 November 2021, and the father did not explain their alleged inadequacy. In any event, the pathway by which the primary judge reached her several decisions in those reasons is readily discernible. I will consider the balance of Ground 12 when addressing Ground 2.
Insofar as Ground 8 alleges a failure to give reasons for adjournments, no appeal now lies from an adjournment (s 26(2)(b)(ii) of the Act) and in any event the adjourned applications have since been determined, and hence the challenges now futile.
The reasons given on 30 July 2021 for the primary judge’s inability to extend the time until the divorce order became absolute are adequately expressed in the transcript of the hearing on that day.
These grounds fail.
Failure to take into account material consideration – Ground 2
This ground contends:
2.The learned Trial Judge failed to take into account a material consideration that the respondent had a current Temporary Protection Order for Family Violence as the respondent for an application including the Children and also subpoenaed material available from the, now, Department of Child Safety, Youth Justice and Multicultural Affairs.
(As per the original)
Demonstrably, at [58] the primary judge did precisely what this ground asserts she did not do in relation to the protection order. Further, whilst the primary judge’s reasons did not expressly advert to the subpoenaed material referred to in this ground, it is not incumbent upon a judge to mention every fact or argument relied on by the losing party as relevant to an issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
Ground 2 fails.
Adjourning the matter without interim orders – Ground 3
This ground reads:
3.The learned Trial Judge decision to adjourn the matter indefinitely to a date to be fixed in February, without Interim Orders is plainly wrong as the appellant filed an initiating application, including Interim Orders sought and Notice of Risk on 11 August 2021 for the safety, care, welfare and development of the Children.
(As per the original)
The challenge made by this ground is not possible to understand, whether from the ground itself or the submissions advanced under it. Interim parenting orders were explicitly made by the primary judge on 19 November 2021.
This ground fails.
Failure to provide notes of Child Inclusive Conference – Ground 5
This ground reads:
5.The learned Trial Judge has not provided notes or Orders for notes to be provided of the Child Inclusive Conference by Ms B, as requested to Chambers, to establish whether a line of questioning was appropriate for the Children interviewed and materials considered.
(As per the original)
There was no obligation on the primary judge to respond to requests from the father for the relevant notes, and at least on one view, his direct communication with the primary judge’s chambers was inappropriate. No Application in a Case was filed seeking the production of the notes.
This ground is without merit.
Decision unjust or plainly wrong – Ground 10
This ground reads:
10.The Learned Trial Judge on 29 September 2021 decisions are plainly unjust as the Appellant applied for Parenting Orders for the safety, care and welfare of the Children, of necessity and with urgency by instruction of the Magistrate after issuing a Temporary Protection Order (TPO) as the applicant in these proceedings and aggrieved party with the TPO for an incident including the Children yet has had parental responsibility removed as the applicant and granted to the respondent Mother despite the evidence, including Subpoenaed evidence and the Mother’s inability to promote a meaningful relationship with the Father and cooperate for the benefit of the Children, that the Children live with the Mother.
(As per the original)
In order to succeed on this ground, I would need to be well satisfied that the primary judge was plainly wrong, her decision being no proper exercise of the judicial discretion (Gronow v Gronow (1979) 144 CLR 513 at 519).
Given that the interim parenting orders made by the primary judge were clearly open on the evidence, I am not so satisfied, and hence this ground fails.
CONCLUSION
No ground of appeal is made out, and therefore the Notice of Appeal will be dismissed. In that event, no party sought any order for costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 18 May 2022
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