Odin & Samar
[2024] FedCFamC1A 44
•27 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Odin & Samar [2024] FedCFamC1A 44
Appeal from: Samar & Odin [2023] FedCFamC2F 1103 Appeal number: NAA 267 of 2023 File number: SYC 5081 of 2021 Judgment of: CHRISTIE J Date of judgment: 27 March 2024 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the appellant was unable to indicate which ground or grounds the further evidence supported – Where the evidence was available at trial and not tendered – Where it is not established that if the evidence was before the primary judge the outcome is likely to have been different – Application dismissed.
FAMILY LAW – APPEAL – Appeal against final parenting orders – Non-compliant Summary of Argument – Where the appellant’s oral submissions do not address the grounds of appeal – Where the grounds of appeal are not made out – Error by the primary judge not demonstrated – Appeal dismissed – Costs ordered.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 102NA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23, r 13.39, Sch 3
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Number of paragraphs: 44 Date of hearing: 27 March 2024 Place: Sydney For the Appellant: Litigant in person Counsel for the Respondent: Mr Schonell Solicitor for the Respondent: Sydney Law Group Pty Ltd Independent Children's Lawyer: Mr MacDiarmid, Mark MacDiarmid Family Law Specialist ORDERS
NAA 267 of 2023
SYC 5081 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ODIN
Appellant
AND: MS SAMAR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
27 MARCH 2024
THE COURT ORDERS THAT:
1.Appeal NAA 267 of 2023 is dismissed.
2.The appellant pay the respondent’s costs of the appeal in the sum of $10,000.
THE COURT NOTES THAT:
A.The appellant intends to pay the ordered costs from his share of the monies received pursuant to the parties’ property settlement.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 a pseudonym Odin & Samar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against final parenting orders made on 25 August 2023.
By Amended Notice of Appeal filed 6 December 2023, the appellant appealed against Order 8 of the Orders made 25 August 2023.
The Amended Notice of Appeal was filed by a firm of solicitors but the appellant appeared at the appeal on his own behalf and was responsible for the Summary of Argument filed in his case.
The appeal was opposed by the respondent and the Independent Children’s Lawyer (“ICL”).
PRELIMINARY ISSUE
The appellant made an oral application to adduce further evidence on appeal which was opposed by the respondent and the ICL.
Rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides specifically for an application for further evidence on appeal. Such application must be filed at least 14 days prior to the commencement of the sittings in which the appeal is listed. A response is to be filed at least seven days prior to the date of the commencement of the sittings. Pursuant to subrule (4), the application is to be heard at the same time as the substantive appeal.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives the Court an unfettered discretion to admit further evidence on appeal. However, case law (albeit relating to the predecessor of s 35, being s 93A of the Family Law Act 1975 (Cth) (“the Act”) has developed some well-known considerations which a Court will analyse as part of the decision as to whether to receive further evidence.
The discretion that s 93A(2) confers on the Full Court to receive further evidence on an appeal exists to serve the demands of justice: CDJ v VAJ (1998) 197 CLR 172 at 202 (“CDJ v VAJ”); Hsiao v Fazarri (2020) 270 CLR 588 at [43].
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Relevant to appeals concerning parenting orders, the High Court went on to observe:
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children’s welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interests in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
There is otherwise no statement of principle or factors which in any way constrain the Court’s discretion to admit further evidence.
The appellant was not able to indicate which ground or grounds the further evidence supported. It was certainly not clear to me. The appellant was able to indicate where the proposed evidence fitted within the chronology of parenting matters. It is not controversial that the evidence was available at trial and not tendered. Many other videos were in evidence. The appellant effectively blamed his lawyers from the bar table. I was satisfied that notwithstanding the videos were not before the primary judge, the appellant had himself given evidence of the facts and circumstances which he contended had occurred. I am not satisfied that if the evidence in video form had been before the Court the outcome is likely to have been different. This is particularly the case given the Grounds of Appeal.
Accordingly, I declined the oral application in an appeal to adduce further evidence and proceeded to hear the appeal proper.
For the reasons which follow the appeal will be dismissed.
THE TRIAL
The proceedings before the primary judge were concerned with both parenting and financial issues but the appeal pertains only to the parenting aspect.
The parenting proceedings concerned the parties’ two children X (born 2014) and Y (born 2020) (“the children”).
The primary judge set out the following relevant background:
5.The children had supervised time with the father through [Supervision Centre B] in December 2021. There were two further periods of supervised time on 25 December 2021 and 8 January 2022. Supervised time occurred at [Supervision Centre C] from 28 May 2022 to 26 February 2023.
6.Jude attends counselling with a psychologist at [D Counselling Service]. He started this on 27 September 2021.
7.At the commencement of the hearing the mother sought orders for sole parental responsibility for both children, and that they live with her. She sought no order for time with the father, and various injunctive orders against his conduct…
8. At the commencement of the hearing the father sought orders for the children to live with him. During the course of the proceedings he changed his position to seek orders for equal shared parental responsibility, that the children live with the mother, and that he spend time initially supervised weekly and increasing gradually over a period of one and a half years to alternate weekends from Friday to Monday, and each Wednesday from the end of school to 6pm.
(Footnote omitted)
The primary judge found that the father had engaged in family violence, lacked insight and posed a risk to the children. Further, the primary judge was concerned that supervision had not prevented “manipulative” behaviour of the appellant towards the children.
As a consequence of the primary judge’s findings, she made orders which provided that the children live with the respondent and that she have sole parental responsibility for them. Further, the primary judge made a restraining order which is the subject of the appeal:
8. Pursuant to s 68B of the Family Law Act 1975 (Cth) Orders are made for the personal protection of the Mother, [Ms Odin] and the children being [X] born […]2014 AND [Y] born […] 2020, and the Father is hereby restrained from:
(a)Entering or remaining in any place at which the Mother and children reside;
(b)Entering or remaining in any place that the children attend school;
(c)Entering or remaining in any place at which the Mother attends for her employment, including [E Hospital];
(d)Entering or remaining at any place at which members of the Mother’s family reside.
(e)Pursuant to Section 68C of the Family Law Act 1975 (Cth), the Court notes the power of arrest given to NSW Police following the grant of injunction pursuant to Order 8 above.
THE APPEAL
The appellant has not complied with r 13.23 of the Rules.
Rule 13.23 is expressed in clear, definitive and mandatory terms. However, failure to comply with its terms will not be fatal to an otherwise meritorious appeal.
The failure to comply does make the Summary of Argument of little utility as a means of developing the appeal grounds and, where there is no apparent connection between the appeal grounds and the content of the Summary of Argument, I have not had regard to its content.
The appellant acted on his own behalf at the appeal and his oral submissions had the same defect – he focused his submissions on the unfairness of the Court having dealt with the application when he sought an adjournment, the fact that he was endeavouring to obtain expert psychiatric evidence and facing obstacles, and dissatisfaction with the lawyer who was appointed to act for him pursuant to s 102NA of the Act. It is not part of my task to evaluate these complaints which are not raised by the grounds nor are they objectively apparent on the face of the appeal record.
Ground 1
Ground 1 was expressed as:
1.Primary judge erred in law in failing to consider the “primary consideration” of the benefit to the children of having a meaningful relationship with both of their parents pursuant to subsections 60CC (1) and (2).
The primary judge was explicitly aware of the requirement to address the primary considerations giving primacy to s 60CC(2)(b) of the Act.
Having observed that the children enjoyed spending supervised time with the father at [52], at [66] the primary judge recorded “[t]he orders do not provide a meaningful relationship between the children and their father. Unfortunately, the father’s conduct means that protecting the children from risk, as set out above, means that a meaningful relationship with their father is not possible.”
I do not accept that the primary judge failed to consider the benefit of a meaningful relationship between the father and the children. She explicitly considered and rejected it as inconsistent with their best interests.
Ground 2
Ground 2 was as follows:
2. The primary judge erred in law in failing to consider any of the “additional considerations” pursuant to subsections 60CC (1) and (2), and specifically,
2.2 the likely effect, if any, of the changes in the children’s circumstances, including the likely effect on the children of any separation from a parent;
2.3whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
While the ground is framed as relating to ss 60CC(1) and 60CC(2) of the Act, I think the appellant intended to refer to ss 60CC(2) and 60CC(3) of the Act.
The primary judge found that orders for time between the children and the father would expose the children to a risk of harm. The specific risks identified included the risk of being exposed to physical or psychological harm from being subjected to or exposed to “abuse, neglect or family violence”. The risk of psychological harm was found to exist even in a supervised context.
The primary judge considered the impact of the orders she proposed on the children, in particular noting the evidence of the Court Child Expert that the mother would “assist [the children] come to an understanding of their father. She would have the capacity to be led by [X], and respond to his questions about his father in a neutral way.”
No party asked the primary judge to consider the operation of s 60CC(3)(l) of the Act in this case since it is not plain that the position of one or other of the parties would have been less likely to lead to further litigation.
I am not satisfied that the primary judge failed to consider material relevant considerations. This ground is not made out.
Ground 3
Ground 3 was as follows:
3. The primary judge erred in law, in that the exercise of discretion resulted in an outcome that was plainly wrong or unjust, having regard to:
3.1the failure to consider the impact of the parenting orders on the children
3.2 the young age of the children
3.3 the complete severance of the children’s relationship with a parent;
3.4the failure to consider or give adequate weight to the mitigation of risk
As discussed above, the primary judge was aware that she was being asked to consider competing applications about young children where one proposal provided for no time and the other for modest time. As discussed above, the primary judge also raised concerns that the risks were not capable of mitigation.
This ground is no more than a complaint that the primary judge, in weighing the competing applications, determined that the risks of the appellant’s proposal were too great and the Court was without evidence that they could be mitigated. The ground acknowledges that the determination was an exercise of discretion and accordingly “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”: Gronow & Gronow (1979) 144 CLR 513 at 519.
Ground 4
Ground 4 was as follows:
4. The primary judge erred by failing to consider of [sic] failing to give adequate consideration to:
4.1 whether any condition would sufficiently ameliorate the risk as identified by her Honour;
4.2 whether any other order was available to enable the children to have the benefit of a meaningful relationship with their Father.
4.3 Having determined that the children were at an unacceptable risk of harm in the father’s care, it was incumbent upon the primary judge to consider whether risk could be mitigated.
The primary judge was not obliged to canvas conditions which were not the subject of evidence or submissions.
Short of orders which provided for time between the children and the father, it is difficult to conceive of orders which would provide the children with a meaningful relationship with their father.
Her Honour explicitly considered and rejected supervised time and in so doing considered that the identified risks could not be mitigated. No error is demonstrated.
It follows that the appeal will be dismissed.
COSTS
The appellant has been wholly unsuccessful.
The Court is empowered to order costs where there are circumstances which justify that approach: s 117(2) of the Act. This appeal has been dismissed and on that basis alone I am satisfied that the respondent should have her costs paid by the appellant.
The respondent filed a costs schedule in accordance with Sch 3 of the Rules. The costs at scale are said to total $11,625.10. I have reviewed the schedule and have formed the view that the costs claimed appear to be solicitor/client as opposed to party/party. In this case it is to the advantage of the parties that I make an order in a sum certain as opposed to requiring the parties to undergo assessment. In broad terms the sum of $10,000 more closely approximates party/party costs at scale and I will so order accordingly.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 27 March 2024
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