Mulroney & Mulroney (No 2)
[2023] FedCFamC1A 171
•10 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mulroney & Mulroney (No 2) [2023] FedCFamC1A 171
Appeal from: Mulroney & Mulroney [2023] FedCFamC2F 490 Appeal number: NAA 144 of 2023 File number: NCC 1111 of 2019 Judgment of: AUSTIN J Date of judgment: 10 October 2023 Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from final parenting orders providing for the children to live with the father and spend time with the mother – Where the mother’s grounds of appeal are loquacious and span pages of narrative – Where self-represented litigants are bound by the same principles and obligations as any other litigant – Where the mother’s complaints of apprehended bias and denial of procedural fairness are rejected – Where no complaint of apprehended bias can be competently asserted from merely dissatisfaction with the ultimate result – Where the mother’s assertion the primary judge ignored some evidence she adduced cannot be anything more than supposition – Where the mother’s assertion the primary judge erred in law in failing to consider certain provisions of the Family Law Act 1975 (Cth) is rejected – Where the primary judge correctly identified the legal principles governing the dispute – Where the mother could not explain why identified findings were wrong – Appeal dismissed – Application in an Appeal – Where the mother’s application to join the paternal grandparents to the appeal was unnecessary given they were named as respondents in the Notice of Appeal – Application dismissed – Application in an Appeal – Adduce further evidence – Where the mother could have adduced the evidence during the trial – Where the mother does not explain how the evidence of 11 lay witnesses would help demonstrate any of the alleged appealable errors – Application dismissed – Appellant mother ordered to pay respondents costs in a fixed sum – Where the mother would suffer financial hardship if ordered to pay any of the ICL’s costs in addition to the costs due to the respondents – ICL’s Application for costs dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CG, 61C, 65DAA, 69ZX, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 and s 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Crimes Act 1900 (NSW)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Newett & Newett (No.2) (2021) FLC 94-051; [2021] FedCFamC1A 11
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Number of paragraphs: 55 Date of hearing: 10 October 2023 Place: Newcastle The Appellant: Litigant in person Counsel for the First, Second and Third Respondents: Ms Ticehurst Solicitor for the First, Second and Third Respondents: Conditsis Lawyers Solicitor for the Independent Children's Lawyer: NLS Law ORDERS
NAA 144 of 2023
NCC 1111 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MULRONEY
Appellant
AND: MR MULRONEY
First Respondent
MS U
Second Respondent
MR T
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
10 OCTOBER 2023
THE COURT ORDERS THAT:
1.The two Applications in an Appeal filed on 25 September 2023 are dismissed.
2.The two Responses to an Application in an Appeal filed on 3 October 2023 are dismissed.
3.The appeal is dismissed.
4.The appellant shall pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $10,000.
5.The appellant shall pay the second and third respondents’ costs of and incidental to the appeal, fixed in the sum of $5,898.
6.The Independent Children’s Lawyer’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mulroney & Mulroney (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal is brought by the mother from parenting orders made between the parties by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 28 April 2023.
Relevantly, the orders make provision for the father to have sole parental responsibility for the parties’ two children (Orders 2, 3 and 12), for the children to live with the father (Order 4), for the children to spend time with the mother for several hours each week and on some special occasions at a public venue (Orders 5, 6, 7 and 8), for the children to communicate electronically with the mother (Order 10), for the children to travel internationally with the father (Orders 20 and 21), and the mother’s restraint from certain conduct (Orders 9, 19 and 22). Those are the specific orders from which the appeal is brought.
The appeal was resisted by the father and the Independent Children’s Lawyer.
The mother joined the paternal grandparents to the appeal, even though they were not parties to the original proceedings. They too resisted the appeal.
The appeal is dismissed for the following reasons.
Background
The parties married in May 2007 and finally separated in September 2017 (at [8]).
Their two children were born in 2010 and 2014 and are now aged nearly 13 and nine years.
During the parties’ relationship, the family lived mostly in Australia, but also in Country E and the Country L at certain times (at [8], [10] and [13]). At the time of separation, the family was living in Country E.
In October 2017, the father and the children returned to live in Australia in Region D of NSW, where they still live, sharing a house with the paternal grandparents, who assist the father with their care (at [2], [16] and [37]).
The father arranged and paid for the mother to travel to Australia to visit the children in January 2018 and July 2018 (at [18], [20]). She then travelled to Australia of her own accord for about six weeks in late 2018 (at [22]), rented a home in Sydney in January 2019, and has lived permanently in Sydney since March 2019 (at [24]), though she asserted recently moving to Region D. She is an Australian citizen (at [7]).
The father commenced proceedings seeking orders in respect of the children in April 2019 (at [26]). Several suites of interim orders were made as the litigation progressed.
In May 2019, the parties were restrained from removing the children from Australia (at [27]).
In August 2019, orders were made confirming the children’s residence with the father and requiring them to spend professionally supervised time with the mother (at [29]–[30]).
In June 2020, orders were made again confirming the children’s residence with the father, but dispensing with the need for their time with the mother to be supervised (at [32]).
In January 2022, more orders were made with the parties’ consent, restructuring the amount of unsupervised time to be spent by the children with the mother (at [35]). The Court noted the father was willing to consider expanding the children’s visits with the mother if she chooses to move from Sydney to Region D (at [36]).
In the upshot, since October 2017, the children have lived with the father and spent limited time with the mother (at [17]).
The father and the ICL sought orders which perpetuated the existing regime of the children living with the father and spending time with the mother for a few hours each weekend (at [3], [54], [55] and [58]).
The mother instead sought orders for the children to live with the parties for equal time in Sydney and [in] Region D (at [4], [56] and [121]).
The primary judge made orders more closely resembling the orders sought by the father and the ICL, concluding such orders promoted the children’s best interests (at [5]).
Application to join the paternal grandparents
On 25 September 2023, the mother filed an Application in an Appeal seeking the paternal grandparents’ joinder to the appeal as parties, but the application was unnecessary since the paternal grandparents were already joined as respondents to the appeal by the Notice of Appeal filed by the mother. They were jointly represented with the father. At the outset of the hearing, they sought their removal from the appellate proceedings as parties, but no advantage would accrue to them by such a procedural order being made as they had already incurred the expense and inconvenience of filing a Summary of Argument and appearing at the hearing. The mother’s application and the paternal grandparents’ response are both dismissed.
Application to adduce further evidence
On 25 September 2023, the mother filed another Application in an Appeal seeking leave to adduce further evidence in the appeal, supported by an affidavit she filed contemporaneously.
The further evidence the mother wanted to adduce in the appeal comprised:
(a)An unidentified text message, which she alleged would demonstrate the father’s controlling behaviour and his isolation of the children from her;
(b)the transcript of the hearing conducted on 12 August 2019;
(c)unspecific oral evidence from 11 lay witnesses; and
(d)the affidavits of two other witnesses filed in 2020.
The application to adduce such evidence is refused, as is the father’s response to it seeking indemnity costs.
The unidentified text message could have been adduced during the trial, but was not. The mother deposed she could not find the message in time to tender it as an exhibit, but that is not a good enough reason to admit it in the appeal (CDJ v VAJ (1998) 197 CLR 172 at [55], [114], [116] and [186.9]). The litigation was afoot for over three years before the trial began. This following exchange occurred between the primary judge and the mother’s interpreter near the end of the trial:
[INTERPRETER FOR THE MOTHER]: I actually have some more evidence, but I couldn’t have them prepared because I didn’t have enough time to do so.
HER HONOUR: Well, I consider
[INTERPRETER FOR THE MOTHER]: and I didn’t even sleep
HER HONOUR: the mother did have enough time.
[INTERPRETER FOR THE MOTHER]: enough. Yes.
HER HONOUR: HONOUR: You can tell the mother I consider she did have enough time. This matter was listed for trial a long time ago, and she has had enough time. All right. So we will move on with the process. …
(Transcript 2 December 2022, p.161 lines 25–38)
The transcript of the interim hearing in August 2019, which occurred three years before the final trial started in November 2022, could not possibly demonstrate error by the primary judge. The mother deposed she wanted the transcript in evidence to prove the father’s “previous legal team has destroyed the evidence”. It is difficult to imagine the transcript could actually prove that allegation but, even if it could, it would not demonstrate any error made by the primary judge on the evidence adduced at trial.
The unidentified evidence of 11 lay witnesses should not be received. They were not called as witnesses at trial and the mother advanced no explanation as to how their evidence would help demonstrate any of the appealable errors alleged by the grounds of appeal. Permitting any of such unheralded evidence would require an adjournment of the appeal hearing.
The affidavits of the two other witnesses filed in 2020 ought not be received in the appeal as they were not read in the mother’s case at trial. No explanation is advanced for why the affidavits are supposedly relevant now, but were not then.
The appeal
The mother filed an Amended Notice of Appeal on 12 July 2023, following a procedural order requiring her to do so to avoid the summary dismissal of the appeal in its original form.
The appeal in its amended form comprises four revised grounds of appeal, but they are loquacious and span six typewritten pages of narrative. Due allowance is made for the mother’s disadvantage of being without legal representation, but she is bound by the same principles and obligations as any other litigant. An attempt is made to interpret and address the true meaning of her grievances, but she was confined to, and not permitted to stray beyond, the tenor of them.
Ground 4 – apprehended bias and denial of procedural fairness
Whilst difficult to elucidate, these dual complaints of apprehended bias and the denial of procedural fairness are seemingly premised on three broad assertions that the primary judge: first, preferred the evidence adduced by the father; secondly, “ignored” evidence, including certain exhibits (being Exhibits R, W and O), upon which the mother relied or wished to rely; and thirdly, refused a request to extend the trial beyond its allotted time of three days.
Regrettably, the submissions made in the mother’s Summary of Argument and orally did not correlate with the particulars within the ground of appeal.
The complaint of apprehended bias is rejected. The mother’s Summary of Argument reveals the assertion of apprehended bias arises from her perception of the adverse assessment of her case in the reasons for judgment. However, the reasons explicate the judgment which was actually required of the primary judge and do not prove the pre-judgment of the contentious issues. Assertions of apprehended judicial bias (or at least those based on conduct) are directed to the reasonable apprehension of partiality by a judge’s pre-judgment of the issues in contest, but no complaint of apprehended bias can be competently asserted from merely dissatisfaction with the ultimate result (Newett & Newett (No.2) (2021) FLC 94-051 at [54]–[80]).
No application was ever made at the trial for the primary judge’s disqualification, suggesting no apprehension of bias then existed, but even if the mother considered such an application was then legitimately available, she waived the opportunity to make it (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
The bare oral assertion of bias on grounds that the primary judge took into account the contents of the Family Report is rejected. The report was in evidence and had to be taken into account, even if the primary judge did not act on the expert opinion evidence.
The miscellaneous complaints about the denial of procedural fairness are also rejected.
True enough, the mother was not permitted to rely upon material which was not filed in accordance with procedural orders (at [51]), but such insistence by a judge upon procedural compliance rarely entails error because allowing an errant party’s departure from procedural directions is liable to be procedurally unfair to the compliant party. No reason was advanced by the mother to explain why it was unfair to require her adherence to the trial directions.
The mother’s assertion that the primary judge “ignored” some evidence she adduced cannot be anything more than supposition on her part. The primary judge identified the material upon which the mother relied, including exhibits (at [51]). Although the primary judge did not refer to every piece of evidence in the reasons for judgment, there was no requirement for her Honour to do so (Fox v Percy (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463–464; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136). Her Honour’s reasons only needed to reasonably explain the final result (DL v The Queen (2018) 266 CLR 1 at [32]–[33] and [130]–[131]), as they duly did.
In her Summary of Argument, the mother referred to a comment made by the court child expert in the Family Report to the effect that not all issues raised by the father in conference with her were then raised in discussion with the mother, due to the absence of an interpreter. The mother claimed that omission resulted in procedural unfairness to her, but the submission must be rejected. She had the Family Report in her possession well before the trial started and, despite knowledge of the omission, did not ask for an updated Family Report to deal with it. Nor did she file affidavit evidence to identify and address the issues raised by the father with the court child expert but not with her. Nor did she cross-examine the court child expert about the omission. Nor did she make any submission about the alleged importance of the omission to the primary judge. She was free to cross-examine the father about the issues he raised with the court child expert. If she did, then the omission of the court child expert to discuss them with her was cured. If she did not, that was her choice.
The mother contended that, on the final day of the three-day trial, the primary judge refused a request to extend the trial into a fourth day in the following week. The contention was not proven by reference to the transcript but, even so, that is not of itself an appealable error. The primary judge was mandated to ensure the proceedings were finalised efficiently (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), for which purpose her Honour was empowered to control the length of, and the use of time within, the trial (s 69ZX(2) of the Act; s 69(2) of the FCFCA Act). In any event, the mother did not articulate how she was prejudiced by the primary judge confining the duration of the trial to the time originally allotted. Generally speaking, trials should be confined to their allotted time.
As an overall observation, no deprivation of procedural unfairness can result from correctly made procedural and forensic decisions during a trial, regardless of a litigant’s perception of the unfairness of the repercussions flowing from such decisions. The concept of procedural fairness is concerned with only the fairness of the process, not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]).
Grounds 1 and 3 – failure to consider material considerations
The mother asserts the primary judge “erred in law in failing to consider” certain provisions of the Act, nominated as being ss 60B, 60CC(2)(a), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k), 60CG, 61C, and 65DAA.
The complaint is easily rejected through examination of the reasons for judgment. The primary judge correctly identified the legal principles governing the dispute and expressly referred to each of the statutory provisions nominated by the mother (at [41]–[47]). Thereafter, the primary judge discussed the evidence as it pertained to those provisions and stated the relevant findings made in relation to them (at [62]–[162]). The primary judge found the presumption of equal shared parental responsibility was rebutted and so s 65DAA of the Act was not then engaged (at [171]–[179]).
The mother might have apprehended, or at least hoped, the synthesis of the evidence with those legal principles may have led to a different result, but appealable error is not demonstrated merely by adverse findings. In any event, the relevant complaint is that the primary judge “failed to consider” certain important statutory provisions, which is demonstrably false.
The mother also adverts in the Amended Notice of Appeal to other statutory provisions within the Crimes Act 1900 (NSW), which she considers were relevantly overlooked. The primary judge was exercising federal civil jurisdiction, not State criminal jurisdiction, so the State statute had no application to the proceedings heard by her Honour. The identified provisions of the State statute are concerned, respectively, with assault, child abduction, perjury and intimidation. The mother was presumably intending to contend that such offences had been committed by the father or paternal grandfather and such conduct was relevant to the outcome of the proceedings, but the contention is contrary to several findings made by the primary judge.
First, the primary judge observed how the mother’s contention of the children being exposed to the risk of harm in the father’s household, where the paternal grandfather also lives, was inconsistent with her proposal that the children live with the father for no less than one-half the time (at [75]). Her Honour found the children were not at any risk of harm living with the father (at [79] and [158]). Some specific allegations of historical violence made by the mother were not resolved by any finding (at [156]-[157]), but it was unnecessary to do so when the mother ran a case that she and the father should share parental responsibility for the children and that they should live with him for equal time. That she might now retrospectively regret she did so does not demonstrate error by the primary judge.
Secondly, the primary judge did not accept the mother’s contention that the father deceitfully removed the children from Country E to Australia in October 2017. The mother deposed she believed the father and children would only be visiting Australia, but realised in January 2018 they were staying (at [127], [137] and [159]). The primary judge accepted the father’s evidence that the parties discussed and agreed upon the relocation in advance (at [160]-[162]).
Thirdly, while the mother may believe the father and paternal grandfather perjured themselves by giving evidence that contradicted her own, that was not the finding of the primary judge. The only factual conflict resolved by a finding based upon the parties’ respective reliability pertained to the children’s removal by the father from Country E to Australia, which entailed acceptance of the father’s evidence in preference to the mother’s (at [159])-[162]). Otherwise, the creditworthiness of the parties and witnesses was unimportant.
Ground 2 – factual findings
This ground of appeal comprises a running commentary on multiple paragraphs of the reasons for judgment, but does not assert any particular material factual error.
The mother’s Summary of Argument separately takes issue with a dozen or more findings within the reasons for judgment, which overlap but do not match those nominated in the ground of appeal, but only by expressing her disagreement and by referring to evidence she gave. She does not explain why the identified findings were wrong, in the sense of them not being open to the primary judge.
Disposition
The appeal is dismissed.
The father, paternal grandparents and ICL all sought orders that the mother pay their costs of and incidental to the appeal. The father and paternal grandparents filed their schedule of costs one day late, but leave is granted to press their costs applications notwithstanding.
The father and the paternal grandparents should have their party/party costs of the appeal because the appeal abjectly lacked merit, was wholly unsuccessful, and should not have been brought. That consideration carries more weight than the mother’s impecuniosity.
The paternal grandparents sought party/party costs of $5,898, which sum is granted.
The father sought party/party costs of more than $28,000, which sum seems entirely disproportionate to the legal work necessary to resist the appeal. Pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the father’s costs are fixed at $10,000.
The ICL’s application for very modest costs of $2,300 founders on the rock of s 117(4)(b) of the Act, given the mother would suffer financial hardship if ordered to pay any of the ICL’s costs in addition to the costs due to the respondents.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 12 October 2023
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