Newett & Newett
[2020] FamCAFC 76
•6 April 2020
FAMILY COURT OF AUSTRALIA
| NEWETT & NEWETT | [2020] FamCAFC 76 |
| FAMILY LAW – APPEAL – PARENTING – PROPERTY – Where the primary judge erred in law by determining an application that was already disposed of, wrongly identifying issues, wrongly attributing certain claims to the mother, and determining a significant matter without hearing arguments in relation to it – Where no error of the kind discussed in House v The King (1936) 55 CLR 499 – Where no actual or apprehended bias – Appeal allowed – Costs certificates issued. FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file an Amended Notice of Appeal – Adduce further evidence – Where the mother incorporated the further evidence into her Summary of Argument – Where the mother is allowed to rely upon her Further Amended Notice of Appeal – Application otherwise dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Adduce further evidence – Where the new evidence relates to events that occurred after the judgment – Application allowed. FAMILY LAW – APPLICATION IN AN APPEAL – Extend time to file the application – Adduce further evidence – Where the new evidence does not assist the court in determining whether or not there was an error made by the primary judge – Application dismissed. |
| Family Law Act 1975 (Cth) s 93A and s 61DA Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules (2004) (Cth) r 22.39 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 House v The King (1936) 55 CLR 499; [1936] HCA 40 In the Marriage of Rutherford (1991) FLC 92-255; [1991] FamCA 68 Jess and Ors & Jess and Ors (2014) FLC 93-620; [2014] FamCAFC 227 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Newett & Newett [2019] FamCAFC 102 Newett & Newett [2019] FCCA 2175 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 |
| APPELLANT: | Ms Newett |
| RESPONDENT: | Mr Newett |
| INDEPENDENT CHILDREN’S LAWYER: | Carter Farquar Mediation & Family Law |
| FILE NUMBER: | BRC | 2179 | of | 2018 |
| APPEAL NUMBER: | NOA | 81 | of | 2019 |
| DATE DELIVERED: | 6 April 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 26 February 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 August 2019 |
| LOWER COURT MNC: | [2019] FCCA 2175 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Damien Greer Lawyers |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER | Carter Farquar Mediation & Family Law |
Orders
Save that the mother be permitted to rely upon a Further Amended Notice of Appeal, her Application in an Appeal filed 21 January 2020 be dismissed.
The father’s Application in an Appeal filed 4 February 2020 be allowed.
The mother’s Application in an Appeal filed 20 February 2020 be dismissed.
The mother have leave to appeal from orders (8) – (11) of the primary judge made on 12 August 2019.
Appeal NOA 81 of 2019 be allowed.
The orders of the primary judge made on 12 August 2019 be set aside.
Such matters as were before the primary judge on 18 June 2019 be re-heard by the Family Court of Australia at Brisbane.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent and the Independent Children's Lawyer a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to the parties costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
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 Newett & Newett 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT CAIRNS |
Appeal Number: NOA 81 of 2019
File Number: BRC 2179 of 2018
| Ms Newett |
Appellant
And
| Mr Newett |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
introduction
On 12 August 2019, the primary judge pronounced interim parenting and property orders between the parties, for written reasons then published to the parties (Newett & Newett [2019] FCCA 2175).
Insofar as they dealt with parenting matters, those orders provided for Mr Newett (“the father”) to have sole responsibility for X, born 2011, Y, born 2013, and Z, born 2014 (“the children”). Additionally, the orders permitted the children’s school to be changed. Finally, the orders provided for the children to live with the father, and for the continuation of interim orders made earlier on 6 March 2019, pursuant to which Ms Newett (“the mother”) was afforded supervised time with the children once a week, and was required to commence therapeutic care with a psychiatrist.
Pursuant to the interim property orders, amongst other things, the father was required to sell the former matrimonial home situated in Suburb C (“the Suburb C property”) in which the mother was then residing.
From both the parenting and property orders the mother appeals. The father and the Independent Children's Lawyer resist that appeal. However for reasons which follow, it must be allowed.
BACKGROUND
The mother is presently 42 years of age, and the father is 44. The parties commenced cohabitation in 2005, were married in 2008, and separated in January 2018. The children are presently aged nine, six and five years respectively.
THE HEARING BEFORE THE PRIMARY JUDGE
To understand the nature of the hearing conducted by the primary judge, it is necessary to have a little more history of the matter.
Since separation, the mother has made a number of allegations against the father, including that the father has sexually abused the children.
The proceedings were commenced by the father in the Federal Circuit Court on 1 March 2018. By her Response filed 10 April 2018, the mother sought interim parenting orders, to the effect that she have sole parental responsibility for the children, who would live with her, and spend time with the father on alternate weekends. On 18 April 2018, Judge Cassidy made interim orders providing for the parties to have equal shared parental responsibility, for the children to live with the mother, but spend five nights per fortnight with the father. No appeal was brought from those orders.
On 10 July 2018, a family report was released, which recommended that “[the mother] engage with a psychiatrist and possibly also her psychologist to assist in the management of anxiety, particularly with respect to her beliefs about [the father’s] capacity to care for the three girls into the future”.
On 13 November 2018, the matter was listed for trial to commence on 17 June 2019 in the Federal Circuit Court in Brisbane.
Then, on 6 February 2019, the father withheld the children, following discussions with their nanny about concerns she had surrounding the welfare of the children when in the mother’s care.
The father then filed an application on 7 February 2019, seeking a change of residence for the children, and following a hearing on 26 February 2019, on 6 March 2019, further interim parenting orders were made in the Federal Circuit Court for equal shared parental responsibility, and for the children to live with the father, but spend two hours per week supervised with the mother. The mother appealed from these orders.
On 18 April 2019, the mother filed a further Application in a Case, by which she sought an order staying the 6 March 2019 orders until her appeal was determined, and in the interim, for the children to return to her care, but after a moratorium, resume spending time with the father under the orders of Judge Cassidy of 18 April 2018. On 24 May 2019, that Application in a Case was dismissed by Judge Spelleken.
By then, by Application in a Case filed on 22 May 2019, the mother had sought that the trial date be moved from June to November 2019. That application was listed for the first day of trial on 17 June 2019.
On 17 June 2019 the mother’s appeal from the orders of 6 March 2019 was dismissed, due to the fact that the final hearing of the primary proceedings was set down to commence before a judge that day, hence rendering the appeal futile (Newett & Newett [2019] FamCAFC 102).
Later that day, when the trial was called on, it transpired that the primary judge was conducting another trial. However, he heard from the parties, and investigated whether or not the matter was actually ready for trial, which appeared problematic given that there were 900 pages of the mother’s further material which had not been provided to either of the two relevant experts. In the course of the discussion on that day, the primary judge suggested that the mother, who self-represented, overnight should “just dot point the points that you want to make as to why the adjournment should happen and any other orders that you’re seeking on an interim basis” (Transcript 17 June 2019, p.9 lines 22–24).
When the matter was then called on the following day, the mother handed such a document up to the court (Transcript 18 June 2019, p.3) although it does not appear to have been marked or otherwise retained on the court file, perhaps because it seems that his Honour was without an associate at that particular moment.
The mother’s application for an adjournment was supported by the Independent Children's Lawyer. However during argument, the primary judge, on more than one occasion, told the mother that, if the trial was adjourned, he would not be undertaking a further interim hearing (Transcript 18 June 2019, p.9 lines 8–26, and p.11 line 1). That said, the father’s (and Independent Children's Lawyer’s) position was that, if an adjournment was granted, then pending the trial commencing, there needed to be an interim determination in relation to whether the father should have sole parental responsibility, whether he should be permitted to change the children’s school, and whether the Suburb C property should be sold. Arguments were advanced by the parties in relation to those matters.
Ultimately, his Honour intimated that he intended to adjourn the trial (Transcript 18 June 2019, p.37 line 7), before saying “I will reserve my decision about these things today that we’ve discussed – that is, the sale of the property, the moving of the school and whether there should be an order for sole parental responsibility, and you will get my decision very soon about that” (Transcript 18 June 2019, p.41 lines 5–8).
In due course the primary judge delivered his reserved judgment on 12 August 2019.
THE MOTHER’S FIRST APPLICATION IN AN APPEAL
On 21 January 2020 the mother filed an Application in an Appeal, by which she sought to rely upon a Further Amended Notice of Appeal, include further documents in the appeal book, be permitted to rely upon further materials in support of her legal arguments (including a number of specific references to legislative provisions and authorities), be permitted to amend her Summary of Argument, hand up a further written submission at the hearing of the appeal, and be permitted to rely on further evidence and further amendments to the Notice of Appeal (insofar as the relief that the mother sought was expanded).
Subsequent to filing that application, the mother had structured her Summary of Argument filed in these proceedings by reference to the proposed Further Amended Notice of Appeal, and incorporated into her Summary of Argument the additional authorities and statutory references. For his part, the father adopted the structure utilised by the mother, and particularly the reference to the proposed Further Amended Notice of Appeal. It is therefore appropriate that an order permitting the mother to rely upon the Further Amended Notice of Appeal be made. It is not necessary to make any order in relation to authorities or references to statutes, as the mother has already incorporated those into her Summary of Argument.
Section 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) expressly provides for the receipt of further evidence on appeal.
The High Court in CDJ v VAJ (1998) 197 CLR 172 (McHugh, Gummow and Callinan JJ) observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at trial.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily on the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
117. The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118. The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
…
148. …The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Insofar as additional material is sought to be relied upon by the mother, none of that material speaks to error by the primary judge, but rather seems to pertain to the previous hearings before either the primary judge, or other judges. I decline to admit that material.
Therefore, save for the mother being permitted to rely upon a Further Amended Notice of Appeal, the mother’s Application in an Appeal filed 21 January 2020 should otherwise be dismissed.
THE FATHER’S APPLICATION IN AN APPEAL
The father filed an Application in an Appeal on 4 February 2020. It sought leave to adduce further evidence on the appeal. By Response filed 18 February 2020, the mother opposed that application. The further evidence all related to a foreshadowed argument that the appeal should be dismissed as it was lacking utility.
I am satisfied that, particularly given that all of the new evidence relates to events which have occurred after the judgment, it is appropriate to allow the evidence to be admitted. In doing so I do not ignore the mother’s argument that it is not relevant to the appeal, but that is a matter which I will consider in due course, if and when it is necessary to consider the new material.
THE MOTHER’S SECOND APPLICATION IN AN APPEAL
By a further Application in an Appeal filed 20 February 2020, the mother again sought to rely upon additional material, comprising a Contravention Application which she had brought against the father on 18 February 2020, an appeal which she brought against an order in domestic violence proceedings in the State courts, a Notice to Admit Facts issued to the Independent Children's Lawyer on 14 February 2020, and “[t]o adduce further evidence of “Surrender Notice to Bank” contained in [an] affidavit of [the father].” She also sought an abridgment of time in which to bring that application under r 22.39 of the Family Law Rules (2004) (Cth).
Whilst the evidence in question does post-date the judgment, it does not assist the court in determining whether or not there was error on the part of the primary judge, or if there were, that nonetheless an appeal would be futile.
Given that the material is irrelevant, I decline to abridge the time for the mother to bring the Application in an Appeal filed 20 February 2020. Even if I had allowed the abridgement, I would in any event have dismissed the Application in an Appeal.
THE APPEAL
Ground 1
This ground provides:
1. The judge erred by conducting a hearing where no interim application was before the court. the application the judge referred to in reasons for judgment was dismissed by justice Spelleken on 24 may 2018 and as such there were no justiciable issues before the court to be resolved on an interim basis that follow the federal circuit court rules. It is an error of jurisdiction to exercise judgement regarding interim orders not based on any application before the court;
(Original in upper case)
This ground raises a legitimate curiosity in the judgment, which commences:
1. This matter comes before me to determine an Application in a Case filed by the respondent mother on 18 April 2019. In that Application in a Case the mother seeks orders in relation to both parenting and property.
It is conceded by the father that the Application in a Case filed 18 April 2019 was not live before the primary judge on 17 or 18 June 2019, as it had been earlier dismissed by Judge Spelleken on 24 May 2019. Further, as has been seen, the primary judge was at pains on 17 June to explicitly tell the mother that he was not going to permit re-litigation of interim parenting matters.
There is a further curiosity in that, in the primary judge’s reasons at [34], he says as follows:
34. The mother seeks the following orders:
a.That all previous orders be revoked.
b.The children live with the mother.
c.The mother be granted sole parental responsibility.
d.The father is immediately admitted on admission enforcement order to [City T Hospital] mental health ward for a minimum seven day longitudinal assessment, including long-term cluster b assessment as well as additional physical/pathological assessment of the brain lesion, epilepsy, a potential return of cancer.
e.The father during the assessment is restrained from all technology all visitors and all contact with the outside world.
f.Medical, psychological and psychiatric reports are to be provided to the mother's solicitor.
g.The mother is absolved of any further requirement to attend any form of psychological or psychiatric assessment or therapy.
h.The father, his legal team and associates are restrained from any defamatory comment to any person regarding the mother's mental health, and an order to formally retract such statements made to authorities and other entities involving the children.
i.The father is fitted with a tracking bracelet for tracking by the AFP due to child abduction risk, domestic violence, and constant ignorance of family and domestic violence court orders.
j.The father relocates to Sydney to live with his mother or father and must not enter Queensland but for approved court appearances as approved by the AFP and escorted to and from the airport to the courthouse.
k.The father's current liquid assets and income from all sources are directed into a third party management service for use by the mother and children, with all debts, commitments and bills paid from this account at the mother's discretion.
l.The father must deposit a minimum of $990 per day for five days per week and the third party management service account from his income sources, regardless of actual earnings.
m.All the father’s funds sitting in his lawyer trust account are to be released back to the third party management service. All legal fees paid must be returned immediately.
n.The father's legal fees are to be paid for by borrowings or from his wealthy parents.
o.The father is provided with an allowance equivalent to new start for basic living costs.
p.The father's driver’s licences is revoked due to his brain lesion under medical conditions reporting legislation in Queensland and New South Wales for road safety reasons.
q.All vehicles including the motorcycle are return to the mother and approved for sale, the proceeds of which are available for the mother to replace the family vehicle for transport of the children.
r.Forensic accounting, and will analysis is to commence immediately paid out of the marital estate. If fraud is determined, criminal charges ensue, and 100% of legal costs assigned to the father for all legal cases plus compensation and exemplary damages.
i.The mother be permitted to subpoena such records up to 6 years in the past (January 2013 onwards), for examination by authorities or professional.
ii.Private investigative resources are permitted to examine any and all material.
s.That the father be restrained from all further misleading of the Court and vexatious litigation towards the mother using any Court of Law, Police service or State authority;
i.All presentation of litigation or attempt to incriminate the mother must be first thoroughly examined by the family Court of Australia prior to lodgement with any court or authority, and be heard by the court.
ii.The mother must be present at the session, given full permission to be fully heard, present all evidence, and permitted to fully defend such accusations.
iii.Automatic grant for full claim for costs of personal time and compensation be awarded.
t.That the filing date for the mother’s material be moved to Friday 26 July 2019 at 4:00pm.
Those were not the orders which the mother had sought by her Application in a Case filed 18 April 2019, which relevantly read:
1.A stay on the orders of Judge Spelleken of 06/03/2019 until such time as the Appeal is complete.
2.That the children be returned to the Mother immediately, prior to Easter long weekend.
3.That the lost time with the Children by the mother be made up by no further visitation or phone contact for the Father until the 70% time allocation to the Mother is fully exhausted, after which Judge Cassidy’s Orders should be restored (pending outcomes of Appeal), noting Order 4 below.
4.That the Tuesday and Thursday phone contact for the Father be permanently removed from the Orders of Judge Cassidy of 18/04/2018.
5.That the children undergo psychological and medical examination / treatment in regards to their abduction, and that the ICL and Father’s Solicitor not be permitted to Subpoena records from Specialists until after the treatment is complete and Appeal process is complete.
6.An immediate vehicle switch to the correct registered owners to comply with [Queensland] legislative requirements – [Motor vehicle 1] to be returned to the Mother, and [Motor vehicle 2] to the Father.
7.That the father, his solicitor, and the Independent Children's Lawyer be ordered to immediately cease and desist from defamation regarding the mother’s mental health.
a.That the Father and his Solicitor be ordered to formally apologise directly to each service they notified; within 14 days both verbally and in writing for knowingly misleading the Police, Child Safety, School Officials, Medical Professionals, Social Contacts, Extended Family including the paternal Family, and the Magistrates Court (DV and Criminal courts).
b.The verbal apology, written apologies, and a social media public apology be pre-approved by the Mother, and to be witnessed by the Mother to ensure its authenticity and restoration of reputation.
8.That the Psychiatric Report be declared a confidential Court document for the remainder of the Case and thereafter, never to be shared in verbal or written form.
9.That the mother be provided with reasonable economic relief to account for living expenses, payment of marital debts, house maintenance, property security, significant property repairs, specialist child performing-art classes, [Coding classes], and child maintenance; noting the Father’s $4500/week income capacity that is the property of the Mother’s company (the client is a fraudulently-stolen financial asset of the Mother’s company).
10.That the father be restrained from coming within 250m of the mother or the children; including their residence, local shopping centre and park/playground, and the children’s school.
11.That the Father be restrained from contacting the School or tracking the Mother’s movements through school records. That the Father’s School account access be suspended until Appeal is complete.
12.Prior to further contact with the Children by the Father, the Father undergo full pathological, psychological and psychiatric testing of his personality factors, his major brain injury / cyst / tumour, as well as his epilepsy, his medication side effects; and and provide a report as to the impacts of such on parenting, safety and the children’s welfare, as well as the likelihood of ongoing domestic violence and personal safety of the Mother.
13.That the Father be required to procure all Court transcripts on fast delivery (both written and audio) of all Court sessions held to date, and all future sessions, and supply to the Mother.
14.That the father be restrained from all further misleading of the Court and vexatious litigation towards the Mother using any Court of Law, Police service or State Authority.
Other Orders sought
15.That the remainder of the case be run as a Closed Court in small court rooms.
16.That the case be transferred permanently to the Family Court of Australia.
17.That the father be restrained from all further misleading of the Court and vexatious litigation towards the Mother using any Court of Law, Police service or State Authority.
a.All presentation of litigation or attempts to incriminate the Mother must be first thoroughly examined by the Family Court of Australia prior to lodgement with any court or authority, and be Heard by the Court.
b.The Mother must be present at the Session, given full permission to be fully heard, present all evidence, and permitted to fully defend such accusations.
c.Automatic grant for full Claim of Costs of personal time and compensation (at 2x her consulting daily rates to compensation for time and psychological harm).
18.That due to the domestic violence risk (900 pages of evidence supplied covering every element described within domestic violence legislation):
a.The father be ordered to wear tracking bracelet that alerts both parties if the proximity has been broken;
b.Ethical monitoring / geofencing set up from his technology and mobile devices until Trial;
c.The Mother be permitted to subpoena such records up to 6 years in the past (January 2013 onwards), for examination by Authorities.
19.That the Father be ordered to advise Child Support Authorities by 30 June 2019 of his full requirements to pay spousal and child maintenance congruent with his full business gross capacity to earn ($900 per day), backdated to 2018.
a.That a reconciliation exercise be undertaken and a ratio of no less than 50% gross income be applied to the Mother, to account for significant financial burden on the Mother and Maternal Grandparents.
20.Changes to the Orders for Christmas changeovers: 22/12/19 at 4pm to Father, 24/12/19 at 4pm to Mother, 27/12/19 at 4pm to Father, 30/12/19 to Mother at 9am – all to occur at [Suburb O McDonalds].
21.A permanent change to Judge Cassidy’s orders for the schedule of the Father’s visitation (consistent with a 70/30 split – but better “meaningful time with the children” and does not interfere with their schooling and allows Mother to attend University).
a.Friday 3.30pm through to Tuesday 8.30am (alternate weeks)
b.Two extra nights of Mother’s choice from end of school 3.30pm – 7pm (ability to change as required)
22.A permanent change to pick up / drop off, at all other times to be changed to a [City T] Changeover Transport Service paid for by the Father.
(As per the original)
Further, it will be remembered that on 17 June 2020, the court requested the mother to provide a dot point summary of the issues for determination, and the orders which she sought on an interim basis. The list in [34] of the judgment bears no resemblance to the interim parenting orders the mother sought in that document titled “Agenda Items – Request to Adjourn Trial to November” at page 5, which were as follows:
1a. (i) Children live with the Mother
(ii)Children spend time with the Mother and Maternal Grandparents / Family all school holidays
(iii)After a 3 month period of medical/psych assessment and rehabilitation; children spend time with the Father in supervised contact at [P Contact Centre] 2 hrs per week outside of school holidays
(iv)Children remain in schooling at [Q School]
(v)That the Mother be appointed medical and Educational Guardian of the Children
(vi)That the Mother be permitted to travel on an overseas holiday with the Children and Grandmother in early 2020 (to make up for lost family time from February to June 2019)
1b.If (1a) is not ordered,
(i)Children live with the Maternal Aunt and Grandmother on a temporary basis until final orders
(ii)Children attend schooling temporarily with their Cousins
Rationale: Children will no longer be used as bargaining tools by the Father, and property and medical matters can be readily assessed and addressed without influence. Children feel safe with their maternal grandparents and have identified grandma’s as their special place in the world.
(As per the original)
Before me at the hearing of the appeal, no party was able to advise from where the list at [34] of the primary judge’s reasons was derived.
Further, at [35] of the primary judge’s reasons, when reciting “[t]he orders sought by the father were as follows” curiously, there is thereafter no reference to the interim parenting orders which the father in fact sought. Rather, they are reflected in the orders which the primary judge said were sought by the Independent Children's Lawyer, recited at [36] of the reasons.
At [37] of the primary judge’s reasons, his Honour set out the issues for determination, as follows:
37. The issues are as follows;
a.Whether the father should have sole parental responsibility.
b.Whether the Application in a Case should be dismissed or in the alternative whether orders be made for the children to live with the mother, for the mother have sole parental responsibility.
c.Whether I have power to cause the father to be admitted to a mental health ward for assessment.
d.Whether I should absolve the mother from any further requirement to attend any form of psychological or psychiatric assessment.
e.Whether the father and his legal team and associates should be restrained from any defamatory comment regarding the mother's mental health and whether they should be ordered to retract any statements that have been made.
f.Whether the father should be fitted with a tracking bracelet.
g.Whether the father should be ordered to relocate to Sydney and thereafter be restrained from entering Queensland unless for court appearances as approved by the Australian Federal Police and thereafter escorted to and from the airport to the courthouse.
h.Whether all the father's current liquid assets and income be directed to third party management for use by the mother.
i.Whether the father should pay $4950.00 into a third party management service on a weekly basis.
j.Whether the father's legal fees should be returned immediately.
k.Whether I have the power to order that the father borrow money from his “wealthy parents” for his legal fees.
l.Whether I have the power to provide an allowance to the father equivalent to Newstart for his basic living costs.
m.Whether I have power to revoke the father's vehicle licence.
n.Whether all vehicles should be provided to the mother for sale and that the mother have sole use of those proceeds.
o.Whether a forensic accountant should be funded out of the matrimonial pool.
At [44] of the primary judge’s reasons, the judge correctly identified that the Full Court decision of Goode & Goode (2006) FLC 93-286 at [82] sets out the appropriate pathway when determining interim parenting proceedings. Cognisant of that authority, at [45] his Honour said “I have already identified the competing proposals and the issues in dispute.”
At [51] to [53] of the reasons the primary judge purported to recite the evidence before him as follows:
51. The mother relied upon the following documents:
a.Affidavit filed on the 27 May 2019;
b.Financial statement filed on 10 April 2018;
c.Affidavit of [Ms N] filed 25 February 2019;
d.Affidavit of [Ms D] filed 22 February 2019;
e.Affidavit of [Mr E] filed 25 February 2019;
f.Affidavit of [Mr F] filed 23 February 2019;
g.Affidavit of [Ms G] filed 22 February 2019;
h.Affidavit of [Ms H] filed 22 February 2019;
i.Affidavit of [Ms I] filed 1 November 2018;
j.Affidavit of [Ms J] filed 4 December 2018;
k.Response filed 10 April 2018;
l.Affidavit of the mother filed 22 February 2018 consisting of approximately two (2) reams of paper;
m.Notice of risk filed 10 April 2018;
n.Affidavit of the mother filed 19 July 2019;
o.Application in a Case filed 18 April 2019.
52. The father relied upon the following documents:
a.Further amended initiating application filed 16 April 2019;
b.Notice of risk filed 1 March 2018;
c.Affidavit of [the father] filed 20 May 2019;
d.Financial statement of [the father] filed 20 May 2019;
e.Affidavit of [Ms K] filed 21 May 2019;
f.Affidavit of [Ms L] filed 21 May 2019;
g.Affidavit of [Mr M] filed 31 May 2019;
h.Case outline filed 10 June 2019.
53. The Independent children's lawyer relied upon the following:
a.Case outline filed 12 June 2019;
b.Affidavit of [Dr A] filed 30 October 2018;
c.Affidavit of [Mr B] filed 11 July 2018.
The transcript does not reveal the mother purporting to rely upon such documents, or indeed that the father and the Independent Children's Lawyer ever sought to rely upon the material attributed to them either.
At [64] to [65] of the reasons the primary judge said as follows:
64. The mother has not raised any material change in the circumstances of the parties such that would warrant a reopening of the case with respect to with whom the children live and how much time and where time might occur they spend with each parent.
65. Furthermore, the issues raised in this hearing are precisely the same issues that the mother has raised since she filed her first affidavit in the proceedings in 2018. That is, there is no factor, which has not been disclosed at the previous hearing that would have been material.
Ultimately at [75] of the reasons his Honour concluded as follows:
75. Having determined that there is no material change in circumstances or that there was no material fact not disclosed at the previous hearing I am not satisfied that it would be appropriate to reopen the case in its entirety and consider altering the order Judge Spelleken made with regards to with whom the children live, and how much time the children should spend with their mother and where that time should occur.
Faced with the curious way in which the primary judge had dealt with this matter, the father said at [39] of his Summary of Argument filed 31 January 2020 “[i]t appears that his Honour has determined that the Mother’s written submission [handed up on 18 June 2019] re-enlivened the Application in a Case filed 18 April 2019.” He then went on to say at [41] that “the nature of the Applications for determination is clear from the transcript of the proceedings, as is the parties’ awareness of the Applications being made.”
As the primary judge correctly identified, the starting point in determining interim parenting proceedings is to identify the competing proposals, and hence the matters in dispute. However his Honour did not accurately identify the competing proposals. Unsurprisingly therefore, he did not correctly identify the issues in dispute either. Moreover, there is the curiosity that although he explicitly told the mother on 18 June 2019 that he would not entertain an interim hearing of any substance, his reasons ultimately delivered, purported to determine exactly such an application. Additionally, although in the reasons the primary judge determined that there was no significant change in circumstances to warrant re-litigation, his Honour had not sought any submissions on that matter from the parties, which is scarcely surprising, considering he was not intending, at least as at 17 and 18 June 2019, to determine any substantial interim parenting dispute.
Whilst the way in which the appellant mother advanced much of the argument under ground 1 is untenable, I am well satisfied that, by proceeding to purport to determine an application that was already disposed of, wrongly attributing certain claims to the mother, wrongly identifying issues said to be in dispute which were not, and determining a significant matter without having heard – much less invited – argument in relation to it, the primary judge has erred in law. Ground 1 is therefore made out.
Ground 2
This ground provides:
2. The judge erred by acting under dictation. It is a breach of the fair hearing rule, breach of procedural fairness and breach of statutory requirement s42 of the Family Law Act 1975 and breach of his sworn oath to uphold the law; to unfairly accept the orders made by the fathers legal team, who failed to follow the mandatory required process to disclose important materials to all parties prior to hearing;
(Original in upper case)
It is difficult to understand what this ground seeks to raise, even with the benefit of the mother’s Summary of Argument. There is no basis to assert that the primary judge was “acting under dictation.” There was no unfairness in the primary judge acceding to the three interim orders sought by the father, of which the mother was clearly upon notice. Moreover, she was afforded the opportunity to, and did, make submissions opposing those orders.
This ground of appeal fails.
Ground 3
This ground provides as follows:
3. The judge erred by making orders that were unreasonable in the wednesbury sense, oppressive, fails the objective test and legitimate expectation, by (1) removing the right of the mother to have shared parental responsibility based on no evidence, not in line with the Family Law Act s61DA and (2) supported the outcomes of ‘doctor shopping’ by the Independent Children's Lawyer and the father, who obtained two expert witness reports within three months to obtain a report suitable to their cause with one highly prejudicial report shown to have breached Federal Circuit Rule 15.59(2), (3)(a)(d)(e) in relation to the independent expert assessment, and was commissioned without consent of the mother and without court order;
(Original in upper case)
In order for this ground to succeed, the mother would need to establish the type of error discussed in House v The King (1936) 55 CLR 499 at 504-5 (“House v The King”), where the majority of the 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.
Later, in Norbis v Norbis (1986) 161 CLR 513, at page 540 Brennan J said:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
The presumption of equal shared parental responsibility established by s 61DA of the Act was not displaced in this case. However, having determined that the children should primarily reside with the father, and given the absence of the parties’ ability (whether legally or practically) to communicate, it cannot be said that an order for sole parental responsibility was a plainly erroneous exercise of the discretion.
Ground 3 fails.
Ground 4
This ground provides:
4. The judge erred by making errors of law on the face of record that did not follow proper process to establish fact in line with the rule of procedural fairness and is inconsistent with the principle of institutional integrity; and as such was highly prejudicial, a miscarriage of justice, showing apprehended bias and an abuse of power and abuse of process;
(Original in upper case)
In support of this ground, the mother contends in her written submissions at page 28 that the background facts recited at [1] to [33] of the primary judge’s reasons were “untested, not based on fact, are biased, and highly prejudicial.” A little later in her submissions at page 29, she further says “[i]n this case, the claims of the Father that the Mother suffers a mental illness have been medically tested by various psychiatric experts to be unfounded; yet the claims of the Mother that the Father is attempting to create mental illness in the Mother via many means, remains ignored by the Court regardless of the evidence supplied.”
It does not seem to me that any of the matters at [1] to [33] of the primary judge’s reasons could properly be the subject of any contention. They were plainly established on the material before the primary judge.
This ground of appeal is not made out.
Ground 5
This ground provides as follows:
5. The judge erred by exercising jurisdiction in excess, an abuse of process and failed to apply the rules of procedural fairness, failing the objective test and as such breached the fair hearing rule by making orders that facilitated the father to obtain ‘agency’ on the mothers behalf, allowing the father to sell the family property that would make the mother homeless, ignoring her specific request and equitable right for orders for the proper review and audit of the marital assets;
(Original in upper case)
Although in her first Notice of Appeal filed 4 September 2019, the mother sought leave to appeal, in later iterations she did not. For his part, although the father contended that leave was required to appeal from interim property orders, no argument was seriously directed to whether an order for the sale of property is truly interlocutory or not (as distinct from an order restraining sale, which clearly is (Inthe Marriage of Rutherford (1991) FLC 92-255)). Because, until the sale is effected, the order can be revisited. I am inclined to the view that it is interlocutory.
Leave to appeal will be granted when the appellant establishes an error of principle and/or a substantial injustice (Jess and Ors & Jess and Ors (2014) FLC 93-620; Medlow & Medlow (2016) FLC 93-692).
The father accepts that the order for the sale of the former matrimonial home was arrived at as the result of error. Particularly, that is because at paragraphs [102] to [105] of the reasons, the primary judge said as follows:
102. During the hearing of the case both parties sought an order for the former matrimonial home at [R Street] to be sold.
103. The father seeks an order that it be sold and that the mother vacate the premises within 21 days. The mother did not set out the order she sought in relation to the sale of the property only that she agreed that the property should be sold.
104. Whilst I accept that there will be difficulties in communication between the mother and father there is nothing in the evidence as it currently sits that could satisfy me that I should take the extraordinary step of causing the mother to be removed from the former matrimonial home.
105. The mother has said that she wishes for the home to be sold and it appears on the evidence with regards to the financial aspect of the case that the only way in which she will receive a share of the property pool is if the former matrimonial home be sold. In those circumstances I can be reasonably satisfied that she will cooperate with both the father and any real estate agent appointed.
Those paragraphs do not accurately reflect the mother’s position. Although ultimately, on a final basis, the mother did seek an order for the sale of the property, in the document which she handed up to the court on 18 June 2019, she specifically sought at page 6 that “[t]he [Suburb C property] is not sold until final orders; after Forensic Accounting has been performed and marital pool determined in full” and “[t]hat the Mother and children have full use and control of the [Suburb C property] until final orders”.
It follows therefore, that the order which was thereafter made by the primary judge did not resolve the dispute between the parties, but rather, proceeded under the misapprehension that there was no dispute. I am satisfied that comprises an error of principle, and effected a substantial injustice on the mother, whose claim to remain in the house pending the trial was never determined. It follows that leave to appeal should be granted.
However, whilst conceding error, the father nonetheless contends that to allow the appeal on this ground would be futile, as subsequently, the mortgagee has taken steps to recover arrears under the mortgage, and on 11 November 2019 he agreed to the voluntary surrender of possession of the Suburb C property to the bank.
It is difficult to see how this establishes futility. As I understand it, the bank has not yet moved to take possession of the Suburb C property, and the mother remains in occupation of it.
I am not satisfied that to allow the appeal in relation to the orders of the sale of the Suburb C property would be an act of futility.
It therefore follows that this ground of appeal is made out.
Ground 6
This ground provides as follows:
6. Judge erred by allowing the [Independent Children’s Lawyer] to make determinations of evidence in excess of jurisdiction failing to follow s68LA(2)(a), s68LA(2)(b), s68LA(3), s68LA(5) and failing to put before the court a tender bundle of any kind as it relates to the seriousness of family violence and child abuse as required by statute failing to apply the model litigant guidelines under s55F of the Judiciary Act 1903;
(Original in upper case)
There is no indication in the transcript of any of the assertions made by this ground. Moreover, if there was some failure on the part of the Independent Children's Lawyer, it was not of a kind that infected the primary judge’s orders, or the reasons supporting them, with error.
This ground of appeal is not established.
Ground 7
This ground asserts:
7. The judge erred by making decisions denying a meaningful relationship between the mother and children based on no evidence, failing to rectify the errors of law in the best interests of the child; showing apprehended bias by not properly considering requests for orders or evidence, formally or otherwise, and failing to properly consider facts and evidence presented to the court by the mother. The judge failed to invoke the provisions in s69ZT(3).
(Original in upper case)
Leaving aside the suggestion of apprehended bias, this ground again faces the obstacle explained in House v The King. Error of the requisite kind is not established.
Insofar as there is a suggestion of apprehended bias, far from there being any legitimate basis for such an assertion on the material, the transcript demonstrates that the primary judge most patiently and courteously dealt with the mother, and permitted her to agitate matters as fully as she desired. In any event, no claim of bias was raised before the primary judge.
This ground is not made out.
Ground 8
This ground provides:
8. The judge erred by failing to apply the Family Law Act 1975 as it relates to property settlement, s79(2), s79(4)(a), s79(4)(b), s79(4)(c), s79(4)(d), 79(5)(a), 79(5)(b), s79(9)(b) and as such is an abuse of process and breach of procedural fairness principles;
(Original in upper case)
By reference to this ground, the mother simply asserts in her written submissions at page 66 that “[t]he [primary judge] failed to apply the principles as required above, as such the process of making a decision that was inherently flawed and biased leads the Court into error and is an abuse of power and process.”
There is no merit in this argument. This ground of appeal fails.
Ground 9
This ground provides as follows:
9. The judge erred by not following the mandatory provisions and the intention of the Family Law Act to address issues of family violence, and breached the principle of legality as it relates to;
a) The manner in which interim orders are made for finance and parenting, by failing to apply the binding precedent of stare decisis as ‘in the marriage of cilento’
b)Failing to apply the interpretation requirements of the Family Law Act 1975 under the Acts Interpretation Act 1901 15(A) and 15(A)(B); and
c) The purposive requirement to correct a mischief to ensure family violence is managed statutorily, as stated in the 2011 replacement explanatory memorandum (Family Violence and Other Measures) Bill to consider intrinsic and guiding extrinsic materials;
(Original in upper case)
Whatever it be that the mother is attempting to articulate in this ground, and it is by no means clear, it is without merit.
Ground 10
This ground provides as follows:
10. The judge erred by demonstrating actual and apprehended bias, breached his statutory duty and meets the elements of the tort misfeasance in public office;
(Original in upper case)
As I have already noted, the primary judge dealt with the mother in a most courteous and patient way, and there is no basis on the material for any assertion of apprehended, much less actual, bias. Further, as I observed in relation to ground 7, no issue of bias was raised with the primary judge.
This ground of appeal fails.
OUTCOME
Grounds 1 and 5 have been made out. It therefore follows that the appeal succeeds, both in relation to its challenge to the interim parenting orders, and the orders for the sale of the Suburb C property. In those circumstances, the appropriate order is that the appeal be allowed, and the orders made 12 August 2019 be set aside in their entirety. However since then, the matter has been transferred from the Federal Circuit Court to the Family Court of Australia. It is therefore appropriate that such matters as were properly before the primary judge on 18 June 2019, be remitted for rehearing before a Family Court Senior Registrar or Judge, as the Brisbane case management judge may direct.
Costs
In the event that the appeal succeeded, the mother sought an order for costs, although she orally advanced quite misconceived claims, including for $150,000 in compensation. The mother self-represented in the appeal and therefore the only legitimate claim she might have advanced, was for the costs of the transcript. However, when I asked her how much it had cost, she was unable to tell me. I therefore decline to make any costs order against the husband.
However the appeal has succeeded on grounds disclosing errors of law. It is therefore appropriate that certificates under the Federal Proceedings (Costs) Act 1981 (Cth) issue to all parties, both in respect of the appeal and the rehearing.
Finally, on 24 January 2020, the Registrar who dealt with the father’s Application in an Appeal filed 20 January 2020, reserved the question of the costs of it to the judge hearing the appeal. No party pressed that matter before me, and I decline to make any order for costs in relation to that Application in an Appeal.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 6 April 2020.
Associate:
Date: 6 April 2020
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