NEMELIA & KENTA
[2016] FamCAFC 225
•9 November 2016
FAMILY COURT OF AUSTRALIA
| NEMELIA & KENTA | [2016] FamCAFC 225 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother asserted that she did not consent to share the costs of travel – Where the mother asserted that she could not afford to share the cost of travel and the child should undergo his orthodontic treatment in the Gold Cost rather than Sydney – Where the mother was unable to demonstrate that the trial judge was in error in finding that the mother consented to orders to share the cost of travel – Where the trial judge was clearly aware of the mother’s income position – Where the trial judge’s findings about the mother’s capacity to share the costs of travel were open to her Honour on the evidence – Where it was open to her Honour to order that the child undergo orthodontic treatment in Sydney. FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where the mother sought that the requirement to file all of the transcript of the first instance hearing be dispensed with – Where the mother understood the forensic difficulty for the court where the transcript was unavailable – Where there was no objection by the father – Requirement for transcript dispensed with – Where the mother sought that the court obtain the transcript of the first instance hearing – Where the mother did not establish that this is an exceptional case where the court should provide transcript – Application dismissed – Where the mother sought to exclude the 96 pages of annexures contained within the affidavit of the father from the appeal books – Where there was no objection by the father. FAMILY LAW – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence was relied upon by the mother to dispute the evidence accepted by the trial judge – Where the evidence would not demonstrate that the orders under appeal are erroneous – Application dismissed. |
| Evidence Act 1995 (Cth) s 69 Family Law Act 1975 (Cth) s 93A(2) |
| Cappetto & Cappetto [2013] FamCAFC 69 |
CDJ v VAJ (1998) 197 CLR 172
| APPELLANT: | Ms Nemelia |
| RESPONDENT: | Mr Kenta |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | SYC | 5874 | of | 2011 |
| APPEAL NUMBER: | EA | 138 | of | 2015 |
| DATE DELIVERED: | 9 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Aldridge and Cronin JJ |
| HEARING DATE: | 16 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 July 2015 |
| LOWER COURT MNC: | [2015] FamCA 568 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal be dismissed.
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 Nemelia & Kenta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 138 of 2015
File Number: SYC 5874 of 2011
| Ms Nemelia |
Appellant
And
| Mr Kenta |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal (EA138/2015) filed on 2 December 2015, Ms Nemelia (“the mother”) appeals against orders made by Stevenson J on 21 July 2015. The appeal is opposed by Mr Kenta (“the father”).
In the Amended Notice of Appeal the mother sought leave to appeal, but that is not necessary and the appeal here is able to be brought as a matter of right.
The orders appealed against arose out of parenting proceedings principally about where two of the parties’ three children would live; the dispute initially being whether they should be on the Gold Coast with the mother or in Sydney with the father. On the third day of the hearing, a compromise was reached and the parties asked the trial judge to order that it be on the Gold Coast. They also agreed that the mother have sole parental responsibility for major long-term decisions for the children, and the time the children would spend with the father in Sydney during various school holiday periods. None of that is now contentious.
The issues which are the subject of this appeal concern the parties’ respective financial contributions to the children’s travel between the Gold Coast and Sydney for holidays and, in respect of the child F, which orthodontist should treat him and who should pay for the travel (if any) associated with that orthodontic treatment.
The contentious orders
The two orders which are the subject of this appeal are:
(6)The parties will share the costs of the children’s return travel to Sydney pursuant to paragraph 4 of these orders in the following manner:
(a)the father will purchase the tickets for the first trip the children make following the date of these orders and the tickets for each alternate trip thereafter;
(b)the mother will purchase the tickets for the second trip the children make following the date of these orders and the tickets for each alternate trip thereafter; and
(c)each parent will provide the other with the children’s tickets seven (7) days prior to the departure date.
…
(22)Both parties will do all things necessary to cause [F] to attend all orthodontic appointments deemed necessary by Dr [C] in Sydney provided that:
(a)the parties will each pay for one half of [F’s] airfares; and
(b)the father will use his best endeavours to ensure that [F’s] appointments with Dr [C] take place while he is in the care of the father in Sydney pursuant to these orders.
Background
Little needs to be said about the background. The father was born in Country A in 1960 and came to Australia in 1969. The mother was born in Country B in 1962 and came to Australia in 1990. The parties married in 1995 and separated in 2007. Over the duration of their marriage, they had lived in Country J, and Country I. Between 2010 and 2011, the parties litigated about the children in Country I.
The mother finally came to Australia again in 2011 and the father in 2012. Since arriving in Australia, there has been constant litigation in this court.
The three children of the marriage are B aged 19, F aged 16 and W aged 13. B lives with the father whilst F and W live with the mother.
The mother’s Amended Notice of Appeal
Notwithstanding the mother’s Amended Notice of Appeal was filed on
2 December 2015 pursuant to an order of the registrar, the document contained no immediately discernible grounds of appeal and might best be described as a stream of consciousness.
On the hearing of the appeal, the mother agreed that the document could be distilled to be a complaint about three issues, namely:
1.In making Order 6 of the orders, the trial judge erred in finding that the mother had consented to the arrangement that each party would contribute equally to the cost of the children’s holiday travel;
2.The trial judge had erred in not giving sufficient weight to the evidence of the mother about her capacity to contribute towards the cost of that holiday travel; and
3.The trial judge had erred in making the order for F to have orthodontic treatment in Sydney with a specific orthodontist rather than on the Gold Coast where he would be treated in the public hospital system.
We propose to deal with the appeal on the basis of those issues sequentially. Before doing so, reference needs to be made to the mother’s applications in the appeal.
Applications in an appeal
The mother filed an application in an appeal on 19 February 2016 seeking three orders:
1. That there be a dispensation from the requirement to file all of the transcript of the final hearing before Stevenson J;
2. That the Family Court obtain (and provide to the parties) the transcript of the evidence of Dr C of 24 June 2015; and
3. That the mother not have to include 96 pages of annexures from the affidavit of the father in the appeal books.
In respect of the first order, the mother was alert to the forensic difficulty for this Court of the absence of transcript where there are disputed issues. That is particularly relevant here where the first contention of the mother is that, contrary to the stated reasons and orders of the trial judge, she did not consent to the orders her Honour made (Order (6)). The absence of transcript deprives the Court and the parties of a reliable record if there is a dispute about the evidence. (See Cappetto & Cappetto [2013] FamCAFC 69 at [52]). Despite that, and without objection from the father, the mother continued to seek the order, citing that she could not afford all of the transcript. That order was granted accordingly.
In respect of the second order, it was pointed out that the court does not have funding for, nor as a matter of practice, does it provide, transcript. There are occasions where discrete parts of a transcript are provided if justice so requires it. However, nothing the mother pointed to supported a conclusion that this case created an exception to the normal practice, and we dismissed the application for this order.
In respect of the third order sought, it was observed that the annexures not included in the appeal books were voluminous but as the father had no objection to their absence, the order sought by the mother was made. If necessary the Court could refer to the court file as the record, but that was not required here.
A second application in appeal was filed by the mother on 24 February 2016 seeking to adduce “further” evidence comprising F’s dental records from the “Queensland … Hospital and Health Service”. They had been subpoenaed for the hearing before the trial judge but apparently the documents had not then been available. The mother submitted these records would show that the “severity of the malocclusion” suggested by orthodontist Dr C, who gave evidence before the trial judge, was not correct. In other words, the mother was endeavouring on this appeal to challenge the evidence of Dr C. Dr C had given evidence and was cross-examined. The hospital records, even admitted as business records (s 69 Evidence Act 1995 (Cth)), would not overcome the obstacle that the trial judge determined the issue on the basis of Dr C’s evidence and was aware of the mother’s wish to have F treated on the Gold Coast. Indeed, the trial judge said:
[76]There was no evidence in relation to the expertise and experience of the Gold Coast orthodontist who would provide the treatment, nor as to his or her intended procedure. Dr [C] set out his intended treatment program in his affidavit and oral evidence. The mother made a concession that Dr [C] has a high level of professional capability. In these circumstances, I will order that [F’s] orthodontic treatment is carried out by Dr [C].
The mother simply wanted to dispute the evidence accepted by the trial judge. To the extent that this application could be treated as seeking to admit fresh evidence, the authorities are well-known and set out by the High Court in
CDJ v VAJ(1998) 197 CLR 172. The discretion is conferred by s 93A(2) of the Family Law Act 1975 (Cth) and is clearly remedial in nature. Its principal purpose is to give the Full Court the power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. Here, even if the records could be admitted on some basis, they could not advance the mother’s case bearing in mind the findings of the trial judge as to Dr C’s opinion and expertise. The mother’s application to adduce further evidence was therefore refused.
The appeal
The reasons of the trial judge
In the context of the three issues which we have distilled to be the mother’s complaints, the trial judge said:
As to the consent issue:
[2] By the conclusion of the trial, the outstanding issues between the parties had narrowed substantially. The Independent Children’s Lawyer (“ICL”) submitted a Minute of Proposed Orders which read as follows:
…
5.The parties shall share the costs of the children’s return travel to Sydney pursuant to paragraph 3 of these orders in the following manner:
a. The father shall purchase the tickets for the first trip the children make following the date of these orders and the tickets for each alternate trip thereafter;
b. the mother shall purchase the tickets for the second trip the children make following the date of these orders and the tickets for each alternate trip thereafter;
c. each parent shall provide the other with the children’s tickets 7 days prior to the departure date.
…
[3]The mother consented to the orders proposed by the ICL and preferred the alternative set out in paragraph 15, which would cause the names of the children to be removed from the Watch List. Her preferred option was that [F] undergo orthodontic treatment on the Gold Coast rather than in Sydney. Additionally, the mother sought an order that the father undergo therapeutic counselling.
[4]The father consented to paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21 and 22 of the ICL’s Minute of Proposed Orders…
As to the travel costs issue:
[62]The cost of the children’s travel between Sydney and the Gold Coast was a significant issue in the proceedings. The father has been unemployed since April 2014 but hopes to re-enter the workforce by approximately September 2015. He proposed that the parties share equally the cost of the children’s travel.
[63]The mother likewise is unemployed and her income consists of government benefits, together with board paid by a foreign student. She gave evidence that she intends to find paid employment at the end of these proceedings. Her proposal was that the father meet all costs of the children’s air travel.
[64]I have referred above to evidence which casts doubt on the capacity of each of the parties to provide for the children’s needs. Additionally, concerning matters arose in relation to the father’s care of [B] since 2012.
(Emphasis omitted)
We have already set out above (at [15]) the reasons of the trial judge about the third issue of the orthodontic treatment.
Both the mother and the father filed summaries of argument but these, like the mother’s Amended Notice of Appeal, were an unhelpful narrative. The essence of the mother’s argument was teased out during the hearing of the appeal and we did not call upon the father to respond having regard to the nature of the mother’s submissions. Accordingly, we deal with each of her three complaints as follows:
The denial of consent by the mother
The mother submitted that on the third day of the hearing, a discussion occurred outside the courtroom with the father and the ICL that apparently led to the trial judge being asked to make order (6). Her version, to the extent that it is relevant at all, was:
On the third day, after the lunch break and out of the court room, minutes before we resumed the hearing Applicant and Respondent were told about the ICL her intentions, so I immediately said to the Applicant and the ICL:
“I cannot afford the cost of travelling expenses, if you requested to the Justice the share contribution for the airfare I definitely withdraw my offer to the orthodontist treatment”
The ICL and Applicant said nothing in response to my comments, and after that I did not realise that I have to say in Court the withdrawal of my offer.
(As per original)
That statement does not address the point that, according to [3] of the reasons, inside the courtroom, the mother consented to the orders that her Honour made. No transcript nor any other document or evidence was drawn to our attention by the mother to demonstrate that the trial judge was in error in finding that the parties consented to those orders. Accordingly, that complaint must fail.
Whether the trial judge had erred in giving insufficient weight to the evidence of the mother about her capacity to contribute towards the cost of any travel associated with the children
In her summary of argument, the mother said:
Unfortunately the financial aspect of the outstanding orders which were listed always on the outstanding issues were not discuss/consult again and only learnt about the resolution after we received the orders by electronic means first, and mail later. Too late by then.
(As per original)
The mother submitted that [62] and [63] of the reasons of the trial judge, albeit containing findings, were without evidence or any foundation. When pressed however, the mother was unable to point to anything to demonstrate that her Honour’s findings were wrong. The mother claimed her relevant pension documents that might have shown her financial position had been provided to the Court, but subsequently conceded that she had the relevant pension documents in her possession at that time and had not handed them to the trial judge. Despite that, it is clear to us from [63] that her Honour understood the mother’s income position.
However, that was not the only observation or finding of the trial judge. At [63], her Honour noted the mother’s evidence that she intended to find paid employment “at the end of these proceedings”. The mother did not point to anything (and again the absence of any transcript makes the mother’s position difficult) to demonstrate that that evidence was not given. In addition, an examination of the mother’s trial affidavit, whilst making complaints about the father being in arrears of child support, made no reference to her financial position.
There is therefore no merit or foundation in the second complaint.
Whether the trial judge had erred in relation to an order for [F] to have orthodontic treatment in Sydney rather than on the Gold Coast.
At [3], the trial judge refers to the mother’s consent to the orders proposed by the ICL save as to where the treatment was to occur. The relevant paragraphs of the “minute” mentioned by her Honour at [2] read as follows:
23.That [F] undertakes Orthodontic treatment on the Gold Coast. The court Notes that his first appointment is scheduled for July 2015.
24.In the alternative, that [F] attend upon Dr [C] in Sydney for his orthodontic treatment and the father pay half the costs of [F’s] return airfares to Sydney for this purpose. The court NOTES that Dr [C] will be paying the other half.
(Emphasis omitted)
There can be no doubt that the parties were requiring her Honour to determine which proposal was more appropriate for F.
The trial judge said:
[73]There was a dispute between the parents as to the organisation of orthodontic treatment required by [F]. The father proposed that this treatment be carried out in Sydney by his cousin, Dr [C], and that the mother pay half of [F’s] airfares. The mother proposed that [F] receive treatment on the Gold Coast through the auspices of the Queensland public health system.
[74]Dr [C] gave evidence to the effect that he is prepared to provide treatment to the value of approximately $10,000 at no cost to the parties. He indicated that he would bill that amount to the father, who could pay the debt when and if he finds himself in a financial position to do so. Dr [C] said that he would require appointments with [F] every six to eight weeks and generously offered to pay half the cost of his flights.
[75]The mother gave evidence that [F] has an orthodontic appointment on the Gold Coast in July 2015, after having been on a waiting list for three years. She described Dr [C’s] offer as “very kind” and conceded that “he is a good professional”. The mother’s initial objections to Dr [C] providing [F’s] treatment appeared to be that he is “very inflexible with appointments” and that she would struggle to meet the cost of flights to and from Sydney.
[76]There was no evidence in relation to the expertise and experience of the Gold Coast orthodontist who would provide the treatment, nor as to his or her intended procedure. Dr [C] set out his intended treatment program in his affidavit and oral evidence. The mother made a concession that Dr [C] has a high level of professional capability. In these circumstances, I will order that [F’s] orthodontic treatment is carried out by Dr [C].
[77]It should be possible to schedule some of [F’s] appointments with Dr [C] when he is in Sydney during school holidays to spend time with the father. It seems to me that the father should arrange flights to Sydney and return trips should be booked by the mother. In re-examination, the mother said: “I accept Dr [C’s] offer but I would like to be part of it. I will pay one way and Dr [C] the other way.”
Nothing in the mother’s outline of argument assists in respect of this complaint. She said:
In this opportunity, in my humble opinion, the Trial Judge erred in failing to have sufficient regard to the Respondent Mother’s oral evidence on the best interest for the child [F] over having the oral treatment done at his local residence.
I could considerate an option with Dr [C] in Sydney if the appointment with the Oral Health Queensland department postpone unnecessarily the start of the treatment due to insufficient staff (official website and appointment letter).
(As per original)
The mother referred to the inconvenience and cost associated with having to attend upon Dr C in Sydney because of the cost of the flight for F. But on the evidence, her Honour was entitled to make the determination she did. This complaint also has no merit.
Conclusion
There being no merit in any of the complaints, the appeal must be dismissed.
Costs
At the conclusion of the hearing, we inquired of each party what position they would adopt in relation to the question of costs depending upon the outcome of the appeal. Relevantly, the father indicated that if the appeal was dismissed, he would not be seeking costs, and accordingly we make no order for costs.
I certify that the preceding thirty two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Cronin JJ) delivered on 9 November 2016.
Associate:
Date: 9 November 2016
2
2