Nicolosi & Faron (No 2)
[2024] FedCFamC1A 160
•17 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nicolosi & Faron (No 2) [2024] FedCFamC1A 160
Appeal from: Faron and Nicolosi [2024] FCWA 60 Appeal number: NAA 109 of 2024 File number: PTW 937 of 2017 Judgment of: ALDRIDGE, MCGUIRE & CHRISTIE JJ Date of judgment: 17 September 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING AND PROPERTY ORDERS – Discrete issues for primary judge – Apprehended bias – Interventions by primary judge did not undermine presentation of appellant’s case – Complaint of errors of law leading to miscarriage of justice – Failure to consider evidence – No procedural unfairness from the primary judge’s refusal to accept amended proposed orders after close of evidence – Where many of the appellant’s particulars stem from a misunderstanding of the reasons and orders – No error established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CA, 65D Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2002] HCA 40
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Edinger & Duy [2023] FedCFamC1A 194
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
U v U (2002) 211 CLR 238; [2002] HCA 36
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 88 Date of hearing: 28 August 2024 Place: Heard in Perth, delivered in Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 109 of 2024
PTW 937 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NICOLOSI
Appellant
AND: MS FARON
Respondent
ORDER MADE BY:
ALDRIDGE, MCGUIRE & CHRISTIE JJ
DATE OF ORDER:
17 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 3 May 2024 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicolosi & Faron has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, McGUIRE & CHRISTIE JJ:
INTRODUCTION
By Notice of Appeal filed 3 May 2024 the appellant (“the father”) appeals from orders made in the Family Court of Western Australia on 5 April 2024 in respect of parenting, property and spousal maintenance matters.
The father represents himself on the appeal. His Notice of Appeal seeks an order that:
1.All previous orders as to parenting, property division, and spousal maintenance, be and are hereby dismissed.
Part F, of the Notice of Appeal, continues to outline comprehensive orders sought by the father suggesting he prefers a re-exercise of discretion from this Court should the appeal be successful.
The respondent (“the mother”) is also self-represented on the appeal and argued that the appeal should be dismissed.
The Notice of Appeal raises 10 grounds of appeal numbered 1 to 8 and 10 to 11. There is no Ground 9. Ground 4 encompasses five sub-grounds. Nevertheless, the father’s Summary of Argument, provided primarily in the form of a narrative, advises the abandonment of a number of grounds and where the father begins those submissions with:
Due to my lack of experience in family law I believe my grounds of appeal may come across as mixed up and in some cases doubled up. Because of this I intend to simplify the grounds of appeal by using three main grounds: Perceived Bias, Error in Law and miscarriage of justice.
(Emphasis in original)
A reading of the father’s Summary of Argument, however, suggests certain broad grounds as follows: Ground 1 - “Perceived Bias”; Ground 2 - “Error in law & Miscarriage of justice”; Ground 4 - “Failing to consider evidence before him”; and Ground 5 - “Error in Law”.
We will, therefore, deal with the appeal by reference to each of the father’s four remaining grounds set out in his Summary of Argument and consider the remainder of the grounds set out in the Notice of Appeal to be abandoned.
BACKGROUND
The parties commenced cohabitation in early 2015 and were married in late 2015.
There is one child of the parties born in 2016 and now aged eight years (“the child”).
The parties separated in February 2017 and were divorced in mid 2018.
On 6 May 2019 the parties agreed to parenting orders in respect of the child with such being varied on 30 October 2019. The orders provided for the parties to have equal shared responsibility for the child with the child to live in a shared care regime across a two-weekly cycle being eight nights with the mother and six nights with the father during school terms. School holiday time was to be divided approximately equally between the parties.
The mother was the applicant in the application bringing the orders which are now the subject of appeal. She sought both parenting and financial orders.
On 4 February 2020 an order was made for the father to pay the mother the sum of $200 per week in interim spousal maintenance with effect from 7 February 2020. On 9 April 2021 a further order was made that, until further order, orders in relation to payment and enforcement of interim spousal maintenance be suspended and that the question of interim spousal maintenance and enforcement be adjourned to the trial judge.
The primary judge’s Reasons note a family violence restraining order in favour of the mother and in respect of the father being in force between September 2018 and September 2020. On 30 September 2020 orders were made by consent for the personal protection of each of the parties with relevant injunctions. In late 2021 the mother obtained an interim family violence restraining order against the father but against objection by the father. The issue of a final order had not been determined by the trial before the primary judge in this Court.
The trial before the primary judge commenced 6 November 2023 and proceeded for five days of evidence. Both parties were legally represented, albeit that the father became self-represented for the purposes of closing submissions.
The primary judge’s orders were comprehensive and detailed and provided, inter alia and relevantly:
Parenting Orders
1. All prior parenting orders be and are hereby discharged.
2.That [the mother] have sole parental responsibility for the child…, in relation to education (both current and future), the child’s health, and (subject only to paragraph 4 of these Orders) the child’s religious upbringing.
3.In exercising parental responsibility pursuant to the preceding Order, the [mother] shall:
(a) advise the [father] of the decision she is considering;
(b) invite the Applicant [sic] to express his view; and
(c)take the Applicant’s [sic] view into consideration when making any decision.
…
6.The child live with [the mother] and spend time with [the father] as defined in these Orders.
7. The child spend time with [the father]:
(a)each alternative week from after school on Thursday or 7:30am in the event of a non-school day, until before school on the following Wednesday, or 7:30am in the event of a non-school day; and
(b)such other times as agreed between the parties in writing….
…
9.In each even-numbered year, commencing in 2024, the child spend time with [the father] from the conclusion of school on the last day of the school year until the following fifth Friday (where the following first Friday is treated as falling in the last week of the school year and may be the last day of the school year) and then with [the mother] until before school on the first Wednesday of the first term of the following school year.
10.In each odd-numbered year, commencing in 2025, the child live with [the mother] from the conclusion of school on the last day of the school year until the following fifth Friday (where the following first Friday is treated as falling in the last week of the school year and may be the last day of the school year) and then with the Applicant [sic] until before school on the first Wednesday of the first term of the following school year.
…
20.Subject to paragraph 33 of these Orders, the parties do all acts and things necessary to arrange for the child to have audiovisual communication with the party with whom the child is not then living or spending time, including via the child’s Facebook Messenger account at the written election of either party:
(a) at 6:00pm on each Sunday for not more than 30 minutes; and
(b) at such other times as the child may reasonably request.
…
Financial Orders
42.That in accordance with Section 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”), a base amount of $27,500 is allocated to the non-member spouse [the mother], out of the interest of the member spouse, [the father], in his … Superannuation Fund.
…
THE PRIMARY JUDGE’S REASONS
The primary judge noted that each of the parties sought sole parental responsibility of the child.
The father had initially sought orders to allow him to relocate with the child to the United Kingdom but seemingly abandoned that position by then seeking interim orders for sole parental responsibility for the child; that the mother be assessed for her mental health; that the mother partake in parenting courses recommended by the Court; and the mother have supervised “access” with the child on an interim basis. Yet further alternative orders were announced on the first morning of the trial by the father’s counsel confirming that he no longer pursued relocation of the child and that he was now seeking orders whereby the child spend equal time with each of the parties with the father also abandoning the various interim orders previously sought.
Where the mother was the applicant and presented her case first, the primary judge notes a further amended position by the father put by his counsel at the start of the father’s case on the third day of the trial in the form of a tendered Minute of Final Orders Sought summarised as (at [20]):
(a)all previous orders as to parenting, property division and spousal maintenance be dismissed;
(b) the father have sole parental responsibility for the child;
(c)the child live with each party from after school (or 3:00pm) on Wednesday until after school (or 3:00pm) on the following Wednesday;
(d)the live-with and spend time orders be suspended and the child spend time with each party on special occasions…;
(e)specific orders for handover, the child’s communication with the parties, communication between the parties, access to records, emergencies and medical issues, “fall back” care provisions, travel, injunctions, and a Section 68Q order.
His Honour noted the mother sought orders as follows (at [16]):
(a) sole parental responsibility of the child;
(b)on a two-weekly cycle, eight nights with the mother and six nights with the father, including during the mid-year school holidays;
(c)the time arrangements for the two-weekly cycle be suspended during the end-of-year school holidays, such that the child spends a five-week block of time with each party, with such block of time to include Christmas for each party, each alternate year;
(d)specific orders for [special days], handover, telephone, FaceTime and Skype contact, communication between the parties…;
(e)the return of particular chattels, in default of which the father pay the mother the sum of $4,000;
(f)arrears of spousal maintenance, in the sum of $36,600, for the period from 4 February 2020 until 7 August 2023;
(g)periodic spousal maintenance in the sum of $200 per week, for the period from 7 August 2023, until the date of publication of final orders;
(h)for a period of three years from the date of publication of final orders, periodic spousal maintenance, in the sum of $200 per week;
(i)reimbursement of particular cash sums;
(j)superannuation splitting orders, such that the mother receives 50 per cent of the father’s entire superannuation interests…
At [23] and under the heading, “Observations of the parties as witnesses”, the primary judge found that the mother gave unsatisfactory evidence in several respects and cited five separate examples. At [24] the primary judge found the father to be an unreliable and unsatisfactory witness in several respects and gave five separate examples.
At [25] the primary judge identified four broad issues for determination being:
1.Should the Court make parenting orders which differ from those made in 2019?
2.Should the Court make an order altering property interests?
3.Should the maintenance orders made on 4 February 2020 be discharged, varied, or continued?
4.Should the arrears of maintenance accrued since 4 February 2020 be enforced?
The primary judge found at [36] that there was no dispute that the child had a meaningful relationship with both parents and the orders proposed by each party facilitated and maintained that meaningful relationship.
At [37]–[39] the primary judge considered the mother’s assertions of family violence perpetrated on her by the father and relevantly found that:
39.…The Court accepts that if the father has the opportunity to deal with the mother directly out of Court, he has the capacity to intimidate the mother.
In regard to parenting capacity, the primary judge found that:
44.The capacity of the parties to provide for the child’s emotional needs appears somewhat compromised, given their apparent inability to reduce the high level of conflict between them. High conflict between separated parents is emotionally harmful to children.
At [46]–[47] the primary judge referenced some eight examples of the father communicating with the mother which satisfied the Court that the effect would be to heighten the mother’s anxiety when communicating with father.
At [48]–[49] the Reasons highlight the areas of the dispute between the parties in respect of the child, citing some 14 examples.
Relevantly for this appeal, at [50] the primary judge states:
50.The manner in which the case was conducted does not permit the Court to make findings about where the truth lies in all of these disputes. The tone and breadth of the areas of disagreement between the parties evidences the high conflict between them.
At [53]–[61] the primary judge finds that the presumption of equal shared parental responsibility is rebutted on the evidence before the Court and provides his reasoning towards being persuaded that the mother should have sole parental responsibility but in the terms set out above.
Where the issue of live-with/spend-time with between the parties was discrete and of limited ambit, the primary judge found:
62.Given the manner in which the parties presented their respective cases, the Court is not satisfied that the current live-with and spend-time arrangements during school terms should be materially altered. The child has been living with these arrangements since May 2019.
The primary judge, therefore, continued the eight - six regime for the child between the parties, as against the week-about proposal of the father.
At [71]–[83] the primary judge set out in considerable detail the assets and liabilities of each of the parties and concluded:
83.Both parties are in a negative net property position, and each party has superannuation entitlements.
Relevantly, at [84]–[85] the primary judge notes the father’s position that there should be no altering of the property interests of the parties but that the mother sought orders altering the parties’ property interests by the return to her of particular chattels or in default a cash adjustment of $4,000. The primary judge concluded:
86.Based upon the competing submissions of the parties, the Court finds that this case does not fall into the category of cases in which the Court determines, pursuant to Section 79(2) of the Act, that it is not just and equitable to make an order altering property interests. The Court therefore proposes to consider the factors in Section 79(4) to determine what order (if any) should be made under this section in the property settlement proceedings.
(Footnote omitted)
Consideration was then given to the contributions and “adjustment factors”. At [117], and consistent with the father’s argument, the primary judge was not persuaded that the father had in his possession, custody or control, the chattels which the mother sought and hence no orders were made.
Consistent with the legislation, the primary judge separately considered the superannuation interests of the parties within the context of their relationship and found it to be just and equitable in all of the circumstances that there be a splitting order effecting an approximate division of superannuation as to 40 per cent to the mother and 60 per cent to the father. This required a splitting order with a base amount of $27,500 to the mother from the father’s entitlement.
Finally, at [121] and following the primary judge dealt with the issue of spousal maintenance and, within his discretion, found that the order should not continue contrary to the orders sought by the mother and that enforcement of arrears should be limited to those arrears accrued as at the suspension of the order on 9 April 2021 totalling $12,200 plus interest.
THE APPEAL
Where the father’s now limited grounds of appeal are argued in his Summary of Argument in a narrative form and arguably quibble with the primary judge’s findings of fact and challenges as to weight, it is proper to emphasise that the orders appealed from result from a discretionary judgment and as observed in House v The King (1936) 55 CLR 499 at 504–505:
… 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. …
Any unreasonableness or injustice must be so plain that the appellate court finds a substantial wrong to have occurred. In Gronow v Gronow (1979) 144 CLR 513, Stephen J emphasised (at 519–520):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
It is convenient now to address the father’s grounds of appeal as set out in his Summary of Argument and using the headings and language used by the father.
Ground 1 – Perceived bias
The father under this ground offers three separate particulars in arguing perceived bias on the part of the primary judge. They are:
(1)“Allegations of withholding Child during Christmas and Mothers dates”;
(2)“Allegation of refusing to accommodate tutor and psychologist”; and
(3)“Multiple counts of the mother misleading the court”.
(Father’s Summary of Argument filed 31 July 2024, p.1–2 as per original)
The father’s assertions of bias must be dealt with first because if the father is successful in his challenge, a rehearing will be required (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
In respect of the first particular, it is clear that there were factual disputes between the parties as to the mother’s assertion that the father had withheld the child at a Christmas period or periods. In his narrative the father says:
… [the primary judge] highlights he has seen paragraph 81 on [sic] my affidavit as mentioned in the first paragraph, my lawyers attempts to present [the mother] with the evidence but [the primary judge] stops the cross examination before he is allowed to do so – see transcripts 7th of November 2023 P23 –P24. On the first day of trial [the primary judge] was asking questions whilst [the mother] was at the Bar asking if she was sure she meant Christmas day and not Christmas period, this appeared that [the primary judge] was attempting to coach her.
(Father’s Summary of Argument filed 31 July 2024, p.1)
Firstly, no complaint or objection was made to the primary judge at the trial asserting the judge was coaching the mother. This point is made in Vakauta v Kelly (1989) 167 CLR 568 at 572, thus:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing…
While exceptional circumstances might allow a party to bring the complaint first at appeal without waiver, no such exceptions apply here where the complaint is discrete and particularised as coaching and where the father was represented at the trial.
In any event, where the father references the transcript of evidence for 7 November 2023 at pages 23 and 24, it is abundantly clear that the primary judge is doing no more than clarifying the father’s own case as evidenced here:
HIS HONOUR: [Counsel for the father], sorry to interrupt your cross-examination, but your client’s affidavit - - -
THE WITNESS: 5(b).
HIS HONOUR: - - - In response to [the father’s] most recent affidavit - - -
[COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: Your client says at paragraph 81, regarding the last four Christmases, at paragraph 81:
2021, mother’s court-ordered time. Stayed in her care until 27 December, as per court orders.
[COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: So I understand your client’s case - - -
[COUNSEL FOR THE FATHER]: Thank you, sir.
HIS HONOUR: - - - about 2021.
[COUNSEL FOR THE FATHER]: Thank you. I can indicate my client was furiously behind me – and I am aware that he’s updating affidavit annexures.
HIS HONOUR: Yes. There’s a lot of material.
[COUNSEL FOR THE FATHER]: Yes.
HIS HONOUR: And it has taken me some time to turn it up, and – but - - -
[COUNSEL FOR THE FATHER]: And - - -
HIS HONOUR: Your client’s position is very clear.
[COUNSEL FOR THE FATHER]: Good. Good.
HIS HONOUR: Yes. Thank you.
[COUNSEL FOR THE FATHER]: I think I will move on. I think we’ve crossed as much territory as we can in relation to that.
(Transcript 7 November 2023, p.23 lines 4–48)
The test for perceived bias is clear and uncontroversial. In Johnson v Johnson (2000) 201 CLR 488 (“Johnson v Johnson”) the High Court observed:
11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnotes omitted)
In the Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 the plurality of the High Court stated:
6.Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver … or necessity …, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The test is an objective one and hence postulated on the hypothetical reasonable observer of the judge’s conduct. It is a test founded in the need for public confidence in the judiciary.
As the High Court noted in Johnson v Johnson:
13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”…
(Footnotes omitted)
Where the father relies on a particular portion of the transcript, it is abundantly clear that the primary judge was doing no more than clarifying the father’s own case at trial which, of course, is a perfectly permissible course. The Full Court in Edinger & Duy [2023] FedCFamC1A 194 said:
21.Justice of Appeal Ward in Royal Guardian considered the case law regarding the respective roles of judge and counsel. The principles can be distilled relevantly to include:
…
(b)the judge’s role is to listen to the evidence, and only ask questions that are necessary for clarification or have been overlooked, and to otherwise exclude irrelevant evidence…
Where the intervention by the primary judge’s questioning did not therefore unfairly undermine the proper presentation of the father’s case and simply sought clarification, then the fictional hypothetical lay observer could not reasonably conclude bias on the part of the primary judge. There is, therefore, no merit to this particular of the perceived bias ground.
Second, the father argues perceived bias on a particular of “Allegation of refusing to accommodate tutor and psychologist”.
The father’s Summary of Argument gives only a narrative and does not point to any behaviour of the primary judge that could give rise to consideration of a bias. In his oral argument the father submitted that the primary judge ought to have concluded that he had consented to engagement of a tutor and a psychologist for the parties’ child and that inferentially, the mother was blameworthy for failure to act on his consent. The father’s submission fails to engage with the detailed and conditional nature of his consent. It does not constitute bias to make a determination which places more weight on some evidence and less weight on other evidence. Consequently, there can be no merit to this particular.
Thirdly, the father raises a third particular under the heading of “Perceived Bias” as “Multiple counts of the mother misleading the court”.
The father states “If the Judge fails to control the courtroom and allows officers of the court to wilfully mislead the court and harass a witness, what chance do I have of a fair trial?” (Father’s Summary of Argument filed 31 July 2024, p.3).
In his narrative, the father again does not specifically reference any perceived bias in the Court. At best he appears to challenge findings of fact or credit on the part of the primary judge where his narrative states:
Despite all evidence of [the mother] misleading the Court [the primary judge] made no comment in his decision to her credibility. [The primary judge] made no comment on the legal counsels [sic] misleading of the court and failure to correctly include evidence. This was also despite [the mother] making admissions under oath that the errors in her evidence were due to her lawyers. Yet the Judge made what I feel are huge assumptions to find some way to discredit me ignoring all crimes along the way.
Also note that during his decision [the primary judge] was smirking at me whenever he looked at me, I stopped at one point and spoke into the microphone to point this out.
(Father’s Summary of Argument filed 31 July 2024, p.4–5)
First, it is abundantly clear that at [23] of his Reasons the primary judge did, in fact, address issues of credit and made findings contrary to the mother’s credit. The father was afforded the opportunity to develop this submission in his oral argument. It is plain that he is aggrieved that the primary judge did not draw specific conclusions of wrongdoing on the part of the mother and refer her conduct for investigation. We do not accept that the primary judge was required by the evidence or the submissions to take any particular action. It follows that his failure to do so does not evince bias.
Second, where the father cannot establish as a fact his contention regarding the primary judge’s demeanour it is not open to us to draw any conclusion. The remainder of the complaint refers to the father’s subjective response to the Reasons for Judgment – as opposed to what a fair-minded lay observer may have concluded about the conduct of the trial.
Ground 2 – Error in law and miscarriage of justice
It is the accepted position that appellate intervention may be warranted in the exercise of a primary judge’s discretion should there have been a failure to properly exercise the discretion which the law reposes in the first instance court (House v The King (1936) 55 CLR 499).
Alternatively, if the father is arguing here a failure to afford him procedural fairness, then it is accepted that a decision of a trial judge may be set aside if there is failure to afford a party procedural fairness. The High Court in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 at [46] said “… a demonstration of a bare or merely technical denial of procedural fairness alone is not sufficient to establish an entitlement to a new trial”. The Court went on to say at [60] that the onus lies on the plaintiff to show that “the decision could realistically have been different had the breach not occurred”. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610, the High Court said at [14] “[t]he question in these cases is whether the decision that was in fact made could, not would, “realistically” have been different had there been no error” (original emphasis). The High Court went on to say, in relation to judicial review, at [15]:
What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant’s further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained.
(Footnotes omitted)
Respectfully, the father’s framing of this ground of appeal and the narrative in his Summary of Argument makes it unclear as to where his complaint specifically lies. It appears, however, that the complaint rests with the primary judge refusing to accept a set of proposed orders from the father in person at the commencement of his final submissions and, of course, after the completion of the evidence.
In his Reasons under the heading “Orders sought by the parties” at [17] the primary judge notes the father’s counsel’s tendering of a Minute of Orders Sought during the trial different to those sought by the father when self-represented prior to the trial. The Reasons at [18]–[20] note the father’s position to be in the alternative and later on the first morning of the trial further amended proposed orders were advised to the Court with a yet further amended Minute of Final Orders Sought given to the Court at the start of the father’s case on the third day of the trial.
At [12] of his Reasons the primary judge relevantly states:
On 6 November 2023, the evidence phase of the trial proceeded for five days. Both parties were legally represented. Closing submissions were listed to proceed on 24 November 2023, but were vacated due to the father’s solicitor ceasing to act two days prior to the hearing date. Closing submissions were completed on 25 January 2024. The father was not permitted to rely upon an amended Minute Of Final Orders Sought filed on 11 January 2024. This document differed materially from the Minute Of Final Orders Sought relied upon by the father at trial, which was tendered into evidence at the start of his case.
Relevantly, s 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings for a parenting order, the Court may, subject to certain statutory restrictions, make such parenting order as it thinks proper.
In U v U (2002) 211 CLR 238 (“U v U”), Gaudron J, in relation to s 65D, commented:
30.…That power is not restricted solely by the provisions of Div 6 of Pt VII of the Act. More fundamentally, it is restricted by the requirements of procedural fairness - which requirements are an indispensable feature of the exercise of judicial power…
(Footnotes omitted)
In Allesch v Manuz (2000) 203 CLR 172, Kirby J said:
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”…
36. …It is inherent in the proper conduct of judicial proceedings in a court of law.
(Footnotes omitted)
Whilst the Court holds a broad discretion to make parenting orders pursuant to Part VII of the Act based on a fundamental focus on the best interests of the children at s 60CA, the parameters of any particular parenting case are ordinarily established by the proposals of the respective parties as a matter of practicality. Although, as stated by Gummow and Callinan JJ in U v U:
80.…the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F [relevantly now s 60CC(2) and (3)] and elsewhere in the Family Law Act in coming to a decision about the residence [now, live-with] of a child, and the objective is always to achieve the child’s best interests.
The theme is continued by Hayne J in U v U who stated:
171.In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular “proposals” that the parents may make for the residence of, and contact with, the child … it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172.That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law…
(Original emphasis)
Whether or not there is a lack of procedural fairness, therefore, is contextual. Whilst a party’s position may be fluid throughout the conduct of the trial and dependent upon evidence given and adduced in respect of each party’s case, it is from that evidence that the primary judge references the mandatory statutory factors for consideration and, ultimately, determination.
Importantly, the primary judge here noted that the amended Minute of Final Orders Sought document intended to be relied upon by the father filed after the completion of the evidence “differed materially” from the document relied upon by the father at trial.
In Kioa v West (1985) 159 CLR 550 at 582, Mason J held:
It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…
It is apparent, therefore, that the father’s case was prosecuted in respect of a particular proposed Minute of Orders Sought (or amendments thereof) and the mother and her counsel, properly informed, were able to challenge or concede the father’s position as appropriate. To rely upon a “materially different” position at the conclusion of the evidence and only at final submissions cannot, therefore, be a denial of procedural fairness to the father but may indeed have been a denial of such procedural fairness to the mother should the Court have accepted the father’s materially different amended position.
There can therefore be no merit in this ground of appeal.
Ground 4 – Failing to consider evidence before the Court
The father’s narrative here includes seven particulars asserting a failure by the primary judge to consider evidence being (father’s Summary of Argument filed 31 July 2024, p.6–7):
(1)“Order 20 child having AV communication over her Facebook messenger account, at trial it was demonstrated the child does not have a Facebook messenger account and that Facebook does not allow children under the age of 16 to have accounts. [The mother] also in her affidavit filed 12th of Sep 2023 paragraph 35 states that the child is too young for Facebook”.
(2)“Order 24 mothers [sic] telephone number and address are not to be shared Affidavit filled [sic] 29th May 2023 paragraph 376 onwards and annexure G demonstrate how I have [the mother’s] address and that I have had it without incident for [sic] year and that she knew I had her address and has failed to move house”.
(3)“As pointed out ground in Ground one [the primary judge] has overlooked payslip accuracy, assets, and has ignored [the mother] sold assets before trial such as the engagement ring without taking into account it was done within 12 months. Failed to take [the mother’s] property into account despite [the mother] wanting to claim the debt but not the assets in the home”.
(4)“[The primary judge] in his decision referenced a reason for me being an unreliable witness due to not remembering transactions of approximately $1000 from 3 years ago, trial affidavit filed by me on the 8th of January”.
(5)“Affidavit filed 2021 paragraph 16 disclosed these transactions and where they came from and went too [sic] again [the primary judge] failed to consider the evidence before him”.
(6)“The court granted [the mother] an exemption of fees despite $98,000 being over the limit for pensioners card demonstrating [the mother] has again misled the authorities”.
(7)“[The mother] claims Transcripts 7th of November P17 [the mother] blames her lawyers for misleading the court and that she didn’t prepare or read her affidavit and signed it in a rush… Given [the primary judge] made no comment on the credibility of [the mother] he must have believed this statement and should have given the affidavit no weight. On the contrary though it appears [the primary judge] has cherry picked evidence to suit a narrative”.
In respect of the consideration of evidence, the Full Court in Tibb v Sheean (2018) 58 Fam LR 351 commented:
83.To “consider” is to engage in something that occurs inside the mind. Plainly enough however, an assertion that a judge has failed to consider cannot be directed to what did, or did not, occur within the judge’s mind. Rather, it must be an assertion directed to how that mental activity has, or has not, manifested itself objectively. In seeking to substantiate the assertion by reference to the presence or absence of any such objective manifestations of a judge’s thinking, it must be borne in mind that:
It is plainly unnecessary for a judge to refer to all the evidence led in the proceedings or to indicate which of it is accepted or rejected. The extent of the duty to record the evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case.
Accordingly, a failure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty [to consider all of the evidence in the case] which rests upon him or her…
(Footnotes omitted)
In respect of the first particular, the father does not appear to have fully read or understood the primary judge’s Order 20 which states broadly:
Subject to paragraph 33 of these Orders, the parties do all acts and things necessary to arrange for the child to have audiovisual communication with the party with whom the child is not then living or spending time, including via the child’s Facebook Messenger account at the written election of either party…
The primary judge does not make the use of the Facebook Messenger account mandatory. Rather, the obligatory nature of the order is in respect of the parties doing acts and things necessary to arrange for the child to have audiovisual communication.
There can be no merit to this particular.
Similarly, particular two misunderstands the primary judge’s order which was material in obliging the parties to authorise the child’s daycare, out of school hours care provider, school or any organisation enrolled in, or club of which the child is a member to release to the other party copies of reports, correspondence and information without disclosing the mother’s phone number, work address or home address. In any event, the primary judge made findings as to the mother being potentially “intimidated” at [39] and that there are ongoing and domestic violence intervention order proceedings between the parties. Such an order was, therefore, available to the primary judge on the evidence given and adduced.
There is no merit to particular two.
Particulars three and four of the father’s complaint under “Failing to consider evidence before him” are problematic. Contrary to the father’s submission, the primary judge accurately set out details of the mother’s income which accorded with the evidence before him at [98]. He made reference to her disposal of her engagement ring at [96]. He accurately recorded her legal interest in real property at [71]. Those findings underpinned his conclusions. There is no merit to particulars three and four.
Particular five complains of an administrative decision in respect of the payment of fees. This is not a matter that can be dealt with by either the primary judge or this Court.
Where particular six asserts that the primary judge made “no comment on the credibility of the mother”, this is a clear misunderstanding or misreading by the father of the primary judge’s Reasons which specifically, at [23], reference, with some particularity, the mother’s credit and to make findings contrary to her being a credible witness in five separate examples. There can, therefore, be no merit to this particular.
Given the above, there is no merit to Ground 4 of the father’s appeal.
Ground 5 – Error in law
This ground is essentially unparticularised and supported only by a highly discursive narrative. Where no particular error of law in the primary judge’s Reasons is identified, and at its highest the father raises matters of weight or failure to consider matters (such as referring the mother for investigation of alleged perjury) the complaint must fail.
We find no error in Ground 5.
CONCLUSION
With no errors having been found in the any of the grounds now argued by the father, the appeal will be dismissed.
COSTS
Where each of the parties is self-represented on the appeal, there will be no orders for costs.
I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, McGuire & Christie JJ. Associate:
Dated: 17 September 2024
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