Oakley & Millar (No 3)
[2022] FedCFamC1A 82
•31 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Oakley & Millar (No 3) [2022] FedCFamC1A 82
Appeal from: Millar & Oakley [2021] FedCFamC1F 12 Appeal number(s): NAA 28 of 2021 File number(s): MLC 2195 of 2016 Judgment of: ALDRIDGE, AUSTIN & WILSON JJ Date of judgment: 31 May 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant father appeals from orders providing for the respondent mother to have sole parental responsibility for the children and for them to live with her, but for the children to spend no time nor communicate with the father – Where the appellant pleads 30 separate grounds of appeal – Procedural fairness – Where the contention that the father was given less time to cross-examine is plainly untrue – Where the interjections of the primary judge were neither unwarranted nor discourteous – Mistake of fact – Where there was no error by the primary judge in accepting the respondent’s evidence merely because the appellant disputed it – Error of law – Where there was satisfactory evidentiary foundation for the orders of the primary judge – Unacceptable risk – Where the primary judge gave expansive reasons for why the appellant poses an unacceptable risk of harm to the children – Discretionary error – Where the appellant confuses the failure to take a material consideration into account with the consideration and rejection of evidence said to be material – Where none of the grounds have merit – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CC, 69ZX, 121 Cases cited: De Winter v De Winter (1979) FLC 90-605
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Oakley & Millar [2022] FedCFamC1A 7
Oakley & Millar (No. 2) [2022] FedCFamC1A 27
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 95 Date of hearing: 31 May 2022 Place: Melbourne The Appellant: Litigant in person Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Ebejer & Associates The Independent Children’s Lawyer: Filed Submitting Notice 31 May 2022 ORDERS
NAA 28 of 2021
MLC 2195 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR OAKLEY
Appellant
AND: MS MILLAR
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, AUSTIN & WILSON JJ
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $5,405.71.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oakley & Millar (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This is an appeal by the father from parenting orders made on 2 September 2021, in proceedings under Pt VII of the Family Law Act 1975 (Cth) (“the Act”), by a judge of the Federal Circuit and Family Court of Australia (Division 1).
The two subject children were aged nine and seven years at the time of judgment. The orders essentially provide for the respondent mother to have sole parental responsibility for the children and for them to live with her, but for the children to neither spend time nor communicate with the appellant father. The orders flowed logically from the primary judge’s findings that the appellant poses an unacceptable risk of harm to the children and there are no conditions which could reasonably mitigate the risk of harm he poses.
For the reasons which follow, the appeal should be dismissed with costs.
BACKGROUND
The appellant has lived in Australia since 2001 and is an Australian citizen.
The parties were introduced in African Country B in 2006 or 2007. They married in 2010.
The respondent was eventually granted a visa to enter Australia in 2012.
Their two children were born in 2012 and 2014.
The marriage broke down at some point between June and September 2014.
In September 2014, the family travelled to African Country B. All members of the family held return airfares, with the return trip due to be taken a month later in October 2014. Little more than a week after arrival in African Country B, the appellant and children returned to Australia without the respondent. The circumstances under which she was left in African Country B were contentious. At that point in time, the elder child was two years of age and the younger child was only months old and was still being breast-fed by the respondent.
The respondent later learned the appellant had caused her Australian visa to be cancelled, due to their marital separation. She therefore remained stranded in African Country B until February 2016, when she was finally able to obtain another visa enabling her entry into Australia. All the while, the children lived with the appellant in Australia and did not see the respondent.
In March 2016, immediately following the respondent’s return to Australia, she initiated proceedings seeking parenting orders under Pt VII of the Act. Her interim application was listed for hearing in May 2016. However, upon being served with the respondent’s initiating process, in April 2016, the appellant took the children back to African Country B and placed them in the care of his family. He then returned to Australia alone.
Upon hearing the respondent’s interim application in May 2016, orders were made for the children to be returned to Australia, but the appellant did not comply with the orders. The children remained in African Country B.
The respondent returned to African Country B in October 2016 to find the children. After spending a month searching, she found them and took them into her care. Proceedings in relation to the children had by then been commenced in African Country B by the paternal family, who alleged the respondent had abandoned the children. The respondent defied an African Country B order to return the children to the care of the paternal grandmother, which resulted in her imprisonment for three days.
Meanwhile, more interim orders were made in November 2016 in Australia, providing for the respondent to have sole parental responsibility for the children, for them to live with her, and for them to be returned to Australia forthwith.
The appellant protested his inability to ensure the children’s return to Australia but, in January 2018, after he was convicted of contempt and sentenced to a suspended term of imprisonment, the appellant facilitated the respondent and children’s return to Australia by signing the necessary African Country B documentation. They finally arrived back in Australia in May 2018.
In November 2018, more interim orders were made, but no orders were made for the children to spend time with the appellant. Consequently, the children have not spent any time with the appellant since he took them overseas and left them in African Country B in April 2016.
The trial before the primary judge began in July 2019 and finally concluded in July 2021.
At trial, the respondent sought that the interim orders be perpetuated: she have sole parental responsibility for the children, they live with her, and they not spend any time with the appellant. The Independent Children’s Lawyer (“the ICL”) endorsed her application.
The appellant’s proposal vacillated, but he eventually sought orders for equal shared parental responsibility, for the children to transition into his residential care, and for them to spend time with the respondent.
Judgment was delivered on 2 September 2021, with the primary judge making orders which were largely reflective of those proposed by the respondent and the ICL.
The appellant filed his Notice of Appeal on 30 September 2021, but it was deemed abandoned when he failed to file the draft appeal index on time. On 26 November 2021, the appeal registrar granted the appellant’s application to re-instate the appeal.
The appeal pleaded 25 separate grounds of appeal in a narrative running to 10 pages in length and so was listed to explain to the appellant the unsatisfactory nature of the pleaded grounds and to afford him the chance to re-formulate his challenges to the orders. The incompetent grounds were struck out and the appellant was given time to file an Amended Notice of Appeal (Oakley & Millar [2022] FedCFamC1A 7). The appellant availed of the opportunity and filed an Amended Notice of Appeal on 22 February 2021, but it contains 30 grounds of appeal within a narrative running to 14 pages in length, so not much was achieved.
The appellant filed an Application in an Appeal, which was determined on 25 February 2022. Due to his financial circumstances, he was relieved of the burden to file transcript of the last four days of trial. His application for the Court to procure such transcript at its expense was refused. The trial before the primary judge was spread across 11 days between July 2019 and July 2021, with the Court having already obtained transcript for the first seven trial days and provided it to the parties. The appellant’s application for leave to issue subpoenas in the appeal was also refused (Oakley & Millar (No. 2) [2022] FedCFamC1A 27).
THE APPEAL
By way of general comment upon the appeal, the respondent submitted:
3.Objection is taken by the Respondent to the Amended Notice of Appeal, Summary of Argument and List of Authorities filed by the Appellant. Under cover of those objections, an attempt is made in this document to grapple with what is perceived to be the appellant’s complaints about the learned trial Judge’s orders. The appellant’s amended Notice of Appeal and Summary of Argument in this appeal are convoluted, repetitive and prolix. Many of the purported grounds set out in the Amended Notice of Appeal do not properly identify appealable grounds.
So much is true but, since the appellant is self-represented and English is his second language, the grounds should be addressed pragmatically rather than rejected summarily.
Ground 7
This ground is considered at the outset because it alleges a denial of procedural fairness, which type of complaint must be first considered by intermediate appellate courts (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The specific complaints are that, first, the appellant was given less time to cross-examine, and secondly, the primary judge continually interrupted him during his cross-examination.
The first contention of the appellant being given less time to cross-examine is plainly untrue.
The appellant began his cross-examination of the respondent at 12.20 pm on the first day of trial and it concluded at 4.00 pm on the third day of trial, taking well in excess of 2.5 days which, as the primary judge said, was more than sufficient on any reasonable view (at [60]). That does not even take account of the extra cross-examination of the respondent by the appellant, following her being recalled to give some extra evidence-in-chief.
The primary judge was well entitled to limit the appellant’s cross-examination of the respondent (s 69ZX(2)), but indulged him with extra time on several occasions. These excerpts of the transcript serve to illustrate the point:
HER HONOUR: [To the appellant] You don’t appear to care about the time limits I’m trying to place on you. I have given you so much latitude.
[THE APPELLANT]: Yes, your Honour.
HER HONOUR: It’s now longer than I said – it’s 35 minutes longer - - -
[THE APPELLANT]: I would probably need another 15 minutes. That’s all.
HER HONOUR: Well, you keep saying that.
[THE APPELLANT]: Okay.
HER HONOUR: And you keep on asking questions and going back to topics you’ve already cross-examined about.
[THE APPELLANT]: Okay. This is different, your Honour.
HER HONOUR: How about we agree I will stop you at 10 to 4 and that’s it. That’s another 12 minutes away.
[THE APPELLANT]: Yes. That’s okay.
…
HER HONOUR: Okay. It’s now nine minutes to 4.
[THE APPELLANT]: Okay. So I need – how – 10 minutes more or how - - -
HER HONOUR: No, no. I said 10 to 4. That was it.
[THE APPELLANT]: Can I have just five minutes?
HER HONOUR: Well, you won’t stick with it, will you?
[THE APPELLANT]: I will try, your Honour.
HER HONOUR: You can have till 5 to. Four minutes. That’s it. Hurry up and ask the question.
…
HER HONOUR: What’s the question? One minute to go, [to the appellant]. You’ve been doing this for three days.
…
HER HONOUR: That’s it. It’s 4 o’clock. You’ve had three - - -
[THE APPELLANT]: Okay. Just one question in half a minute.
HER HONOUR: No, no, no. It’s three days. You agreed. I kept - - -
[THE APPELLANT]: Yes. Half a minute. One question.
(Transcript 1 August 2019, p.288 line 27 to p.289 line 1; p.292 lines 31–44; p.295 lines 27–28; p.296 lines 1–7)
By comparison, the respondent’s cross-examination of the appellant began at 11.07 am on the sixth day of trial and ended at 3.14 pm on the seventh day of trial, spanning only about 1.5 days.
As to the second contention of undue interruptions, the appellant cited only two examples, but neither fit the description of a “continual interruption during cross-examination”. The first example was an exchange between the appellant and primary judge before the trial began. The second did occur during his cross-examination of the respondent, but was not repetitive.
Years before, in 2016, the respondent filed two affidavits deposed by nurses with whom she had consulted (Ms Z and Ms BB), but she did not rely upon the two affidavits as evidence at the trial which commenced in July 2019. Nonetheless, several days before the trial started, the appellant issued a subpoena to Ms Z requiring her to produce to the Court records relating to the respondent for the period between 2012 and 2014. Ms Z objected to the subpoena on confidentiality grounds. At the comfmencement of the trial, the primary judge raised with the appellant his intention to pursue access to the subpoenaed documents in the face of the objection. After being given most of the first day to think about it, the appellant waived the subpoena and so the primary judge made an interlocutory order granting him leave to withdraw the subpoena.
The trial commenced on that basis, but it later became apparent during the appellant’s cross-examination of the respondent that he had not abandoned his interest in raising concern about her state of psychological health. For that reason, at the request of the primary judge, the ICL made arrangements for the nurses to attend court and make themselves available for cross-examination by the appellant, of which opportunity he availed. The primary judge accepted the nurses’ evidence (at [118]–[126], [160]–[161] and [183]–[184]), finding there was no concern about the respondent’s mental health and her parenting capacity was not impaired (at [133]–[134], [165], [230] and [271]).
Against that background, the appellant now complains that the primary judge told him the “information” given by the nurses was “irrelevant”. However, the comment to that effect by the primary judge was made when her Honour was first informed the respondent was not relying upon Ms Z’s affidavit from 2016, though the appellant had issued the subpoena to Ms Z requiring the production of records from 2012 to 2014. In response, her Honour said:
HER HONOUR: She’s not being relied upon, though?
[COUNSEL FOR THE ICL]: She is not being relied upon. Her affidavit was filed with the court on 4 May 201.
HER HONOUR: Well, how is that relevant to today?
…
HER HONOUR: Well, he’s seeking for historical records from April 2012 to September 2014. The first issue you would face, [to the appellant], is to convince me that period is relevant.
[THE APPELLANT]: Yes.
…
HER HONOUR: But you need to know that the [respondent] is not relying on the affidavit of [Ms Z].
[THE APPELLANT]: Yes. I know that.
HER HONOUE: Which was filed in May 2016.
[THE APPELLANT]: Yes.
(Transcript 30 July 2019, p.32 lines 34–39; p.33 lines 4–8; p.33 lines 34–41)
What transpired thereafter has already been summarised above. The nurses’ evidence became relevant, but only because the appellant made it so by persistently contesting the issue of the respondent’s psychological health.
It ought be observed at this point that the appellant abandoned his interim application for an order compelling the respondent’s psychiatric or psychological assessment (at [115]). Far from being deprived of procedural fairness, despite abandonment of his interlocutory application, the appellant was given the chance to interrogate the two nurses on the issue he considered to still be significant (at [118]). He need not have asked them any questions at all, in which case their evidence would not have been adduced and accepted by the Court. In any event, the preliminary discussion at this point in the trial, before the evidence even commenced, was not an “interruption” by the primary judge, as the appellant falsely alleged. It was an opening discussion to identify the evidence relied upon by the parties.
The second alleged “interruption” arose during the appellant’s cross-examination of the respondent on the first day of trial. He was questioning her about not having followed him and the children back to Australia from African Country B in September 2014, when she was left behind without a passport. More specifically, the appellant was asking the respondent about the distance between the African Country B village and the airport. The primary judge interjected and this exchange followed:
HER HONOUR: You cross-examining her about the distance of the village to the airport, she has answered her questions - - -
[THE APPELLANT]: Yes.
HER HONOUR: - - - it’s not really going to help me - - -
[THE APPELANT]: Yes.
HER HONOUR: - - - because I have to look what happens in the future.
[THE APPELLANT]: Yes, yes.
HER HONOUR: These are events that happened five years ago.
[THE APPELLANT]: Yes.
HER HONOUR: There has been a lot of events that have happened since then.
[THE APPELLANT]: Yes.
HER HONOUR: So it would be more helpful if you can concentrate on things that are actually going to affect my decision-making.
[THE APPELLANT]: Okay. Actually, your Honour, all this case is history, what has happened in those 18 months we living together, because from 2014 until now, there is no anything happening. It’s just everything, even the intervention order, this case, everything is happening in those 18 months.
HER HONOUR: Okay. But cross-examining – she has given her answer.
[THE APPELLANT]: Yes.
HER HONOUR: Okay. Okay.
[THE APPELLANT]: I appreciate that, your Honour.
HER HONOUR: So you can move on.
[THE APPELLANT]: Yes.
(Transcript 30 July 2019, p.64 line 13 to p.65 line 5)
The interjection was hardly unwarranted or discourteous.
The appellant was not denied procedural fairness. This ground ought fail.
Grounds 5, 9 and 11
These three grounds complain that the primary judge “mistakes the facts” and “made error of law” because her Honour accepted the respondent’s lies, accepted the evidence given by the two nurses, and accepted the evidence given by the Family Consultant.
In support of these grounds, the appellant submitted:
Ground 5. Error of law
Her Honour made error of law that instead of relying on the subpoena material from the nurses as reliable business records as per the evidence act, her Honour relied on the nurse’s memory which proved that they did not remember what had happen in 2013-2014. Her Honour put heavy weight and accepted what the nurses said although it contradicts their own evidence in the court file pages 426-428 of the appeal book….
…
Ground 9. Mistakes the facts
Her Honour mistakes the facts and made error of facts as the [respondent] lied under oath more than 30 times during the cross examination and in her affidavits, still her Honour accepted what the [respondent] said. …her Honour said she accepted the [respondent] false version of story which [sic].
…
Ground 11. Mistakes the facts
Her Honour made error of facts when accepting the witnesses for the [respondent] and the family consultant as all what they said is based on assuming that I made all the mistakes in the case. No evidences and nothing meet the standard proof of evidences it all just lies from the Nurses [Ms Z] and [Ms BB] just lies instead of relying on the subpoena material for their business record.
(As per the original) (Emphasis in original)
Ground 9 addresses the parties’ evidence which was, in some respects, entirely irreconcilable. To the extent that a factual finding was warranted in respect of a controversial issue when neither party’s evidence was corroborated, it was necessary for the primary judge to consider the reliability of their evidence. In an entirely orthodox process, the primary judge preferred the evidence of the respondent to that of the appellant (at [63], [65], [159] and [283]). Of course, it was permissible to accept the respondent’s evidence as being truthful and accurate even though the appellant disputed it.
Grounds 5 and 11 extend the appellant’s complaint to the primary judge’s reliance upon the evidence of the two nurses and the Family Consultant. However, contrary to the appellant’s incorrect submissions, neither the nurses nor the Family Consultant were the respondent’s witnesses – they were witnesses called by the Court. Similarly, there was no error by the primary judge in accepting their evidence merely because the appellant disputed it. The appellant’s assertion of some inconsistency between the nurses’ oral and documentary evidence is misconceived. None of the historical documents created by the nurses as contemporaneous records, sought from them by way of subpoena, was ever tendered in evidence. The primary judge acknowledged the attack mounted by the appellant in cross-examination on the two nurses and the Family Consultant, but nevertheless found them credible witnesses (at [68]–[70], [100], [108], [118]–[126], [156], [159]–[161], [175], [179], [183], [201], [224]–[227], [232], [237]–[238] and [266]). It was open to do so.
These grounds should fail.
Grounds 14, 22 and 23
These three grounds relate to the appellant’s general sense of dissatisfaction with the respondent’s lawyer and the ICL.
Ground 14 complains that the primary judge “mistakes the facts” because her Honour accepted the “lies” of the respondent’s lawyer and the ICL that the appellant would not return to Australia if allowed to travel internationally with the children. Ground 23 then complains that the primary judge did not take into account evidence of the respondent’s lawyer’s “fraud actions, misconduct, falsified documents used and delay tactics”.
The appellant seemed not to appreciate the tension between these two grounds. The primary judge could only have mistaken the facts (as alleged by Ground 14) if her Honour took into account, accepted and acted upon the lawyers’ misconduct of which the appellant complains. But, if such misconduct was taken into account, then it could not have been overlooked (as alleged by Ground 23).
There can be no doubt the primary judge was cognisant of the appellant’s complaints about the ICL and the respondent’s lawyer because this was recorded in the reasons for judgment:
246.During these and previous proceedings in this Court the [appellant] has been focused on his allegations that the Solicitor for the [respondent] has engaged in fraudulent conduct. He has referred the [respondent’s] solicitor to the Legal Services Commissioner on multiple occasions and on each occasion there has been findings of no fault in the conduct of the [respondent’s] solicitor and his complaints have not been upheld. His earlier complaints are referred to in the judgement of Judge Burchardt in November 2016 and Justice Cronin, neither of whom made findings as sought by the [appellant].
247.The [appellant’s] latest allegations were the subject of an Application in Case and affidavit filed by him on 24 July 2019 and are referred to in an affidavit filed by him on 23 June 2021. The [appellant] has alleged that the solicitor has falsified documents which have been supplied to both the Federal Circuit Court and this Court. He has also asserted that the [respondent’s] lawyer has attempted to mislead this Court by preparation of the affidavits of Ms Z and Ms BB, which he alleges are false information. At paragraphs 18 and 19 of his affidavit of 23 June 2021 he deposes that he has referred his allegations against the [respondent’s] lawyer to Victoria Police for investigation and that he is awaiting an update from Victoria Police. It is not clear what is happening with Victoria police’s investigation. It was a common theme throughout the proceedings that the [appellant] described any evidence which did not accord with his view of the world as “false information”.
…
256.According to the [appellant], all of the above complaints and referrals to regulatory bodies and investigations by the police leads to the conclusion that the evidence adduced by the [respondent] was based on false information and has therefore infected the whole of her evidence put before the court. Needless to say, I do not accept that submission and have made findings about the veracity, truth and credibility of all witnesses in the proceedings.
The appellant’s Summary of Argument makes it plain that he complains of lies told by the ICL and the respondent’s lawyer to Cronin J during earlier interlocutory disputes, which must have been at some point during 2017 or 2018 (at [44]–[47] and [53(d)]). Obviously enough, this is not an appeal from the orders made years ago by Cronin J, so the appellant cannot maintain such complaints in this appeal from orders made in September 2021. The appellant’s former appeals from the orders made by Cronin J were all dismissed (at [47]), from which it may reasonably be imputed that, if the appellant raised the same complaints back then, they were rejected.
In any event, aside from the prospect of it being an abuse of process to raise the same complaints again, the maintenance of these allegations of such misconduct is misguided. The portions of the evidence said to prove “fraud actions”, “falsified documents” and “misconduct” are confined to uncorroborated allegations made by the appellant. The relevant evidence is said to comprise emails sent by him in 2017, an email received by him in 2016 from a lawyer he consulted, text messages exchanged in 2016, correspondence received by the appellant from the respondent’s lawyer, translated African Country B documents, and assertions of fact made by the appellant in affidavit form. His assertions of deceit and misconduct by others hinge entirely upon the acceptance of his perception of such events as being truthful and accurate, which the primary judge was loathe to do.
Ground 22 complains the primary judge erred by failing to consider the appellant’s application to discharge the ICL and appoint another, which failure affected the outcome of the proceedings. The simple answer is that the appellant withdrew his application to discharge the ICL. An order to that effect was immediately made during the trial and the primary judge later recorded this in the reasons for judgment:
6.On 19 June 2019 and on 24 July 2019, a few days prior to the commencement of the trial, the [appellant] filed Applications in a Case. He sought an order for the discharge of the Independent Children’s Lawyer. Both counsel for the [respondent] and the Independent Children’s Lawyer objected to the late filing of the applications and the orders sought.
7.It was ultimately agreed that the [appellant] could pursue the orders sought in his Application in a Case filed 19 June 2019, during the course of the trial and that his Application in a Case filed 24 July 2019 would be with withdrawn, in relation to Orders 1, 2, 3 and 11 of that Application. That included the [appellant] withdrawing his application for the discharge of the Independent Children’s Lawyer.
…
249.Orders were made by me on 2 August 2019 granting the [appellant] leave to withdraw his application to discharge the Independent Children’s Lawyer and his application for a further family report. …
The primary judge was not mistaken, because this exchange occurred on the first day of trial:
[THE APPELLANT]: Sorry, your Honour, for the application to discharge the ICL. You said we’re going to look at that during the trial, because if we are looking at that, we are going to delay the trial and I don’t want that to happen. So I agree with your concept that we look at all these issues during the course of this trial.
HER HONOUR: Well, what about the – so you don’t want to proceed with your application to discharge the ICL.
[THE APPELLANT]: Well, that’s at the – the last day of the trial.
HER HONOUR: Well, you can’t. There’s no point. I mean, because an ICL – if you want to pursue your application to discharge the ICL, you need to do that at the beginning of the trial, and then the trial won’t proceed if you are successful or if I decide I need to reserve my judgment. Do you understand that? And give proper reasons. If you withdraw that application, then the trial will proceed without that application, but then you’ve still got your other applications. You want a Family Report to be prepared by [Dr Q], and you want the [respondent] to be psychiatrically assessed. If you don’t want to pursue those applications, that’s absolutely fine. Then we can just start on the trial, and away we go.
[THE APPELLANT]: Yes. We will start the trial, your Honour
HER HONOUR: So you are wanting to withdraw that application in a case. Is that correct?
[THE APPELLANT]: Well, we will look at all the issues here, during the course of the trial.
HER HONOUR: You do not want to – well, you understand that the current ICL will remain?
[THE APPELLANT]: Yes.
HER HONOUR: That application will need to be discharged. The application for a Family Report will need to be discharged by [Dr Q], because we have a Family Report by [Ms S], and if you wanted to make that order, if I agree to make that order, then obviously the trial is going to be delayed for a considerable period of time because [Dr Q] would need to see everybody. And third – and exactly the same with the [respondent]. So if you’re abandoning 1, 2 and 3, and 11, that is the issue of – issuing further subpoenas, then that’s fine. The trial can proceed, and I can allow you to proceed with 4 to 10, during the course of the trial.
[THE APPELLANT]: Yes. I agree with your offering.
HER HONOUR: So you want to withdraw your application of orders 1, 2, 3 and 11, of the application in a case. Is that correct?
[THE APPELLANT]: Yes, your Honour.
(Transcript 30 July 2019, p.16 line 32 to p.17 line 31)
The primary judge had no need to consider the appellant’s application to discharge the ICL because the application was withdrawn.
These grounds should fail.
Ground 6
This ground alleges the order granting sole parental responsibility for the children to the respondent was infected by “error of law” and “mistakes of fact”.
The singular submission made to support this ground in the appellant’s Summary of Argument is expressed in these terms:
Her Honour made error of law and mistakes the facts when made the order of sole parenting responsibility without having evidence about the [respondent’s] parenting capacity or considering the benefit of the [appellant’s] role in meeting the children’s need for their development.
(As per the original)
As can be seen, no particular “mistake of fact” is articulated.
The alleged “error of law” is making the order for sole parental responsibility in favour of the respondent supposedly without evidence of the respondent’s parenting capacity or the benefit of the appellant playing a parental role.
The order for sole parental responsibility was made because the presumption of equal shared parental responsibility did not apply, the appellant had had no involvement in the children’s lives since 2016, and the respondent could not consult and communicate with him due to the family violence he had perpetrated (at [259]–[261]). Once it was determined one party should have exclusive parental responsibility and the children should live with the respondent, it would have been absurd for anyone but the respondent to have parental responsibility.
There was a satisfactory evidentiary foundation for the order. The primary judge was persuaded of the respondent’s competent parenting capacity, based upon the evidence given by her, the Family Consultant and the two nurses. Her Honour was also quite satisfied the children’s interests were advanced by depriving the appellant of any role in their lives, as he had no “capacity for insight or reflection upon the damage he [had] rendered to the children” (at [265]–[270]).
The evidence the appellant alleged was lacking was therefore available and taken into account. This ground should fail.
Grounds 1, 2, 3 and 4
These grounds allege errors of law, but are specifically directed to the primary judge’s finding that the appellant poses an unacceptable risk of harm to the children and the consequential order which precludes the children from spending time or communicating with him (Order 4).
Albeit not couched in language redolent of appealable error, the grounds contend the appellant does not pose an unacceptable risk of harm to the respondent or children (Ground 1), the primary judge did not consider any options which might minimise any such risk (Ground 2), the primary judge did not weigh the asserted risk against the benefit the children would derive from having meaningful relationships with the appellant (Ground 3), and the primary judge did not consider the risk that the children would “grow up without their father” (Ground 4).
In fact, the primary judge gave expansive reasons for why the appellant poses an unacceptable risk of harm. Moreover, the primary judge did precisely the things the appellant alleges her Honour failed to do. Relevantly, the primary judge found:
(a)the appellant perpetrated family violence upon the respondent (at [162], [183]–[184] and [259]), abducted the children from African Country B (at [162]), obstructed the respondent’s return to Australia (at [162]), has little capacity to meet the children’s emotional needs (at [175], [180] and [240]), and poses an unacceptable risk of harm to them (at [185] and [227]) – so Ground 1 should fail;
(b)there was no form of interventionist order which could ameliorate the risk of harm posed by the appellant (at [268]–[269], [273]–[274] and [285]) – so Ground 2 should fail;
(c)that by weighing the risk of harm posed by the appellant to the children against the benefit they might attain from restoration of relationships with him, it follows that the detriment would outweigh any benefit (at [85], [265] and [266]) – so Ground 3 should fail; and
(d)the children do not have relationships with the appellant, would not benefit from them, and have thrived in his absence (at [82], [165], [208], [227] and [277]) – so Ground 4 should fail.
Grounds 8, 10, 12 and 13
These grounds contend for multiple mistakes of fact by the primary judge, but all grounds and the submissions made in support of them are rejected.
Ground 8 asserts it was a mistake to find the respondent’s Australian visa was cancelled in June 2014, when in fact it was valid until October 2014. The respondent led evidence of the appellant having applied for the cancellation of her visa in June 2014, though she learned the cancellation took effect in October 2014. The primary judge was mistaken to say the visa was actually cancelled in June 2014, but the mistake was entirely immaterial and does not sustain the appeal (De Winter v De Winter (1979) FLC 90-605). When the appellant departed African Country B with the children in September 2014, he took the respondent’s passport and other personal papers, impeding her ability to travel.
Ground 10 asserts it was a mistake to find the respondent consulted a general practitioner who reported to the child welfare agency that the respondent did not suffer from any psychological impairment, but the primary judge made no such finding. Her Honour evaluated the evidence adduced about the state of the respondent’s psychological health and found it satisfactory (at [103]–[134]). In the course of that review, her Honour simply quoted from a report of the child welfare agency which said the respondent had consulted with a general practitioner in October 2019 and the doctor reported to the agency that the respondent did not require a mental health assessment (at [117]).
Ground 12 asserts it was a mistake to find the appellant perpetrated family violence. The appellant denied he had, but the primary judge did not accept his evidence. The finding of family violence (at [184]–[185] and [259]), in the widest sense that concept is defined (s 4AB), was based on all of the evidence – including factual evidence given by the respondent, the two nurses, and an officer of the child welfare agency, together with opinion evidence given by the Family Consultant (at [162(a)] and [181]–[183]).
Ground 13 asserts the primary judge mistakenly attributed some past orders to Cronin J when they had in fact been made by a senior registrar. The appellant did not identify the subject orders but, even if he is correct, so long as the effect of the orders was correctly recited (and the appellant did not assert any error in that regard), then the identity of the judge or officer of the Court who made the orders is irrelevant.
Ground 13 also asserts the primary judge mistakenly attributed a statement made by one witness to another. The appellant did not identify the asserted mistake and so failed to establish either the mistake or its materiality.
Grounds 15, 16, 17, 18, 19, 20, 21, 24 and 25
These grounds contend for discretionary error by the primary judge in failing to take into account material considerations, but the grounds and the submissions made in support of them are rejected. The appellant confuses the failure to take a material consideration into account with the consideration and rejection of evidence said to be material.
Ground 15 asserts the failure to take into account the evidence proving the unacceptable risk of harm posed by the respondent to the children. In fact, the primary judge considered and rejected such evidence (at [87], [96]–[102], [135]–[139] and [163]–[165]).
Grounds 16 and 20 assert the failure to take into account the respondent’s public denigration of the appellant and her exposure of the children to such denigration. In fact, the primary judge was cognisant of the appellant’s allegation and the evidence led in support of it, but rejected the allegation (at [87] and [98]–[102]). In support of these grounds the appellant submitted “[b]oth children has loving relation and strong bond with their father”, but that is not so. The primary judge found the children have not spent any time with the appellant since April 2016 (at [46] and [82]), they barely have any recollection of or relationship with the appellant (at [82] and [277]), the elder child did not want to see the appellant (at [195]), the younger child was ambivalent about the appellant (at [195]), and the respondent was not responsible for turning the children against the appellant (at [201]).
Ground 17 asserts the failure to take into account “relevant and important evidence in the various subpoena’s material”. The primary judge recited the evidence relied upon by the parties and the ICL within affidavits and reports (at [49], [51] and [53]) and the documents tendered in evidence as exhibits (at [59]). If the relevant material to which this ground refers is within that evidence, it was taken into account. However, if the material to which this ground refers was within the documents produced in answer to subpoena but never tendered, then it was impossible for the primary judge to take it into account.
Ground 18 asserts the failure to take into account evidence relating to the respondent’s “mental health”, including evidence given by the witness he called, Dr R. The primary judge took such evidence into account, but nonetheless found the respondent’s psychological health was satisfactory and did not compromise her parenting capacity (at [103]–[134]), which finding was not contradicted by the evidence given by Dr R (at [138] and [176]–[178]). The submission of the appellant in the appeal that the primary judge should have forced the respondent to submit to psychological assessment flies in the face of his withdrawal of an application to that effect at trial (at [106] and [115]).
Ground 19 asserts the failure to take into account “the clear breach of s 121 [of the Act]”, which breach he contends should have been referred to the Attorney-General or federal police for investigation. So far as can be discerned, the appellant is unable to identify any involvement by the respondent in the breach of s 121 of the Act which he alleges. The contents of the Amended Notice of Appeal imply the appellant suspects a person named Ms K as being responsible for the breach. Even if he could prove the breach occurred and was committed by that person, the fact would have no material bearing upon the parenting orders made by the primary judge. Even though the appellant suspects the respondent’s complicity, his suspicion is not probative. Apparently the appellant only sought injunctions from the primary judge to prevent further breaches, which proposal was rejected for lack of evidence (at [287]).
Ground 21 asserts the failure to take into account the “parenting alienation” and the “delay tactics, lies, falsified documents and perjury to alienate the children from their father”. As already explained under Grounds 16 and 20, the primary judge found on the evidence that the respondent had not alienated the children from the appellant. As already explained under Grounds 14, 22 and 23, the primary judge rejected the appellant’s complaints of misconduct by the ICL and the respondent’s lawyer.
Ground 24 asserts the failure to take into account the benefit the children would derive from relationships with members of the paternal family. The primary judge expressly recorded, when considering s 60CC(3)(b) of the Act, there was “no issue” joined in the proceedings about the children having relationships with “any other relative” (at [210]).
Ground 25 asserts the failure to take into account the appellant’s ability and willingness to “facilitate healthy relation between the children and the [respondent] [sic]”. In fact, the primary judge expressly considered the appellant’s capacity to do so and found he could not (at [240] and [282]–[284]). In part, that finding flowed from the findings of the appellant’s intentional separation of the children from the respondent in African Country B in 2014 and in Australia in 2016 (at [162] and [167]–[174]).
Quite apart from the lack of merit in these grounds of appeal, the futility of the appellant’s complaints about the findings made by the primary judge concerning the respondent’s satisfactory parenting capacity (under Grounds 15, 16, 18 and 20) is evident from the relief sought in the appeal. Supposing the appeal succeeds, the appellant seeks that this Court re- exercise discretion and make an order confirming that the children “live with their mother”. The appellant cannot logically protest the respondent’s competence as a parent in the appeal when he proposes that the children continue to live with her.
Grounds 26, 27, 28 and 29
These grounds contend for discretionary error by taking into account extraneous or irrelevant considerations, but the grounds and the submissions made in support of them are rejected.
Ground 26 asserts the primary judge wrongly took into account the affidavits of the two nurses filed in May 2016. That is false. Their affidavits were not read in evidence by the respondent (at [49]), the appellant (at [51]), or the ICL (at [53]). Nor were their affidavits tendered as exhibits (at [59]). The only evidence of the nurses was given orally in cross-examination by the appellant. The circumstances in which that occurred have already been explained.
Ground 27 asserts error by the primary judge taking into account an aspect of the evidence given by the Family Consultant, an officer of the child welfare agency, and the respondent’s “lies”. The ground should be rejected. As was explained under Grounds 5, 9 and 11, it was open to the primary judge to accept the evidence given by the respondent and the Family Consultant, even though the appellant did not agree with it. For the same reasons, it was open to accept the evidence given by the officer of the child welfare agency.
Ground 28 is, respectfully, impossible to understand and is not mentioned in the appellant’s Summary of Argument. The ground avers:
… Throughout the judgment her honor allowed extraneous or irrelevant matters to affect the orders. The marriage ended in 2014 all the disputed information were history should not be allowed to affect the children, this is just an example. Also, the interim intervention order is in place since May 2018 I did not breach it at all, the contested hearing in May 2022.
(As per the original)
It appears to be no more than disagreement with factual findings. It is evidently not a complaint about the primary judge taking specific irrelevant considerations into account.
Ground 29 is similarly opaque and is not illuminated by the Summary of Argument. It asserts:
… Her honor affected by previous orders made 6 years ago or so at that time a lot of the information and facts revealed during the cross examination were not available at that time. The court should have given weight to the information and facts in the transcript, court file and subpoena materials.
(As per the original)
The primary judge was at liberty to consider the relevant history. The appellant did not explain how her Honour failed to give weight to “the information and facts in the transcript, court file and subpoena materials”, which seems quite incompatible with the complaint made under this ground of error in taking irrelevant considerations into account.
Ground 30
Finally, this ground asserts the result was “plainly unreasonable and unjust”.
The ground is articulated in this way:
Her honor decision was plainly unreasonable and unjust, I have done psychological assessment and no issues were raised, I have clean police records, I have working with children card, I regularly pay child support and living in Australia for 20 years well integrated I need to help my children with their education and life.
(As per the original)
Suffice to say there is nothing plainly unreasonable or unjust in making orders which preclude the children from spending time or communicating with the appellant when findings were validly made to this effect: the children have been estranged from the appellant since 2016; they have thrived in the respondent’s care notwithstanding the appellant’s absence from their lives; the children do not presently have meaningful relationships with the appellant; he poses an unacceptable risk of harm to the children; and no order could practically be made to attenuate such risk.
DISPOSITION
The appeal should be dismissed for lack of merit.
The respondent sought an order compelling the appellant to pay her party/party costs in the appeal of $5,405.71, which should be granted. The appeal was wholly unsuccessful and, in many respects, completely misconceived. No matter the appellant’s modest financial circumstances, as he asserts them to be, unmeritorious litigation is no less unmeritorious because it is pursued by an impecunious litigant in person (Northern Territory v Sangare (2019) 265 CLR 164 at [27]).
WILSON J:
In reasons just delivered by the Honourable Justice Austin, I agree the appeal should be dismissed. I also agree with his Honour’s disposition of the appeal in terms of costs. In all other respects I have nothing to add.
ALDRIDGE J:
I too agree. The orders of the Court will be as proposed by Justice Austin:
(1)The appeal is dismissed.
(2)The appellant shall pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $5,405.71.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Aldridge, Austin & Wilson. Associate:
Dated: 2 June 2022
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