P v Q
[2023] WASCA 121
•15 AUGUST 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: P -v- Q [2023] WASCA 121
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 7 AUGUST 2023
DELIVERED : 7 AUGUST 2023
PUBLISHED : 15 AUGUST 2023
FILE NO/S: CACV 27 of 2023
BETWEEN: P
Appellant
AND
Q
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other Party
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: MONCRIEFF J
Citation: [P] and [Q] [2023] FCWA 37
File Number : 4061 of 2018
Catchwords:
Family law - Parenting orders - Financial orders - Where primary orders give sole parental responsibility of children to father and restrain mother from contacting children - Where primary orders also make financial adjustment between former parties to a de facto relationship - Where primary proceedings were ordered to proceed on an undefended basis as a result of the appellant's perceived misconduct - Where mother has appealed against primary orders - Application for stay of primary orders pending determination of the appeal - Application to strike out an exhibit received at trial
Legislation:
Family Court Act 1997 (WA), s 66A, s 66C, s 107, s 108
Result:
Application for a stay of parenting orders referred to the hearing of the appeal
Applications otherwise dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | J E P Mansfield |
| Other Party | : | S L Craig |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Paynes Lawyers |
| Other Party | : | Legal Aid (WA) |
Case(s) referred to in decision(s):
Aldridge v Keaton [2009] FamCAFC 106
Anderson v Senior [2013] FamCAFC 152; (2013) 279 FLR 399
Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35
Clemett v Clemett (1980) 50 FLR 248
Commissioner of Taxation (Cth) v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220
Dent v Bishop [2017] FamCA 81
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
EJK v TSL [2006] FamCA 730; (2006) 202 FLR 240
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
K v B [2006] WASCA 100
Langley v Tarelli [No 2] [2020] FamCAFC 126
Re Evelyn [No 3] (1998) 23 Fam LR 73
Stephens v Taylor [2008] FamCAFC 74
T v S [No 2] [2015] WASCA 235
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Contents
Introduction
Factual and procedural background
The primary judge's findings as to the course of the parties' relationship
The primary judge's findings as to the course of proceedings before trial
Trial of the primary proceedings prior to 29 August 2022
Primary proceedings from 29 August 2022 to 1 September 2022
Reinstatement decision on 2 September 2022
Proceedings in the absence of the appellant
Expert evidence at trial
Dr Gosia Wojnarowska
Ms Lauren Paganoni
Conclusion of trial
Primary judge's approach
Events since the making of the primary orders
The appeal to this court
The appellant's applications in an appeal
General principles in relation to stay applications
Stay of orders preventing the appellant's contact with the children
Whether the appeal will be rendered nugatory if a stay is not granted
Whether the appeal has reasonable prospects of succeeding
Balance of convenience and best interests of the children
Disposition
Stay of orders relating to passports and travel
Stay of financial orders
Application in relation to exhibit 69
Orders
REASONS OF THE COURT:
At the conclusion of the hearing of four applications in an appeal filed by the appellant, we made the following orders for reasons to be published in writing later:
1.UPON the undertaking of the respondent not to withdraw down on/against superannuation until the determination of the appeal, the appellant's application in an appeal filed on 24 March 2023 is dismissed.
2.The appellant's application in an appeal filed on 27 March 2023 is referred to the hearing of the appeal.
3.The appellant's application in an appeal filed on 6 April 2023 is dismissed.
4.The appellant's application in an appeal filed on 8 June 2023 is dismissed.
5.The costs of the applications in an appeal filed on 24 March 2023, 27 March 2023, 6 April 2023 and 8 June 2023 are reserved.
These are our reasons for making those orders.
Introduction
In the primary proceedings, the parties sought parenting and financial orders following the breakdown of their de facto relationship in 2018. There are two children of the relationship, who are currently 6 and 9 years of age. We are considering applications in an appeal by the appellant, who was the applicant mother in the primary proceedings, primarily seeking a stay of orders made in the primary proceedings.
This consolidated appeal is against the following orders made by Moncrieff J in the Family Court of Western Australia:
1.Orders made on 1 September 2022, dismissing all 'applications and responses' filed by the appellant and providing for the primary proceedings to proceed on an undefended basis.
2.Final parenting orders made on 3 March 2023 (the parenting orders). Most relevantly for present purposes, the parenting orders:
(a)give sole parental responsibility for the parties' two children to the respondent;
(b)restrain the appellant from contacting the children; and
(c)provide for the respondent to have liberty to obtain passports for the children and travel outside Australia with them.
3.Final financial orders made on 8 March 2023 (the financial orders). Most relevantly for present purposes, the financial orders:
(a)provide for the parties to withdraw amounts from a joint bank account; and
(b)make provision in relation to the distribution of 'splittable superannuation payments'.
On 3 March 2023, the primary judge delivered reasons for making the parenting orders and the financial orders.[1] His Honour had previously published written reasons for refusing to reinstate the appellant to the proceedings on 2 September 2023[2] and for refusing to recuse himself from the hearing of the primary proceedings on 1 December 2022.[3]
[1] [P] v [Q] [2023] FCWA 37 (primary decision).
[2] [P] v [Q] [2022] FCWA 196 (reinstatement decision).
[3] [P] v [Q] [2022] FCWA 271 (recusal decision).
By various applications in an appeal, the appellant seeks a stay of the parenting orders and the financial orders pending determination of the appeal. She has also made an application to strike out one of the exhibits in the primary proceedings.
Factual and procedural background
The following is a summary of the relevant background against which the applications in an appeal fall to be considered.
Unfortunately, the primary judge's reasons set out a large volume of the evidence in the primary proceedings without making express findings as to the primary facts. The following primary facts emerge from the respondent's evidence (which the judge indicated he generally accepted)[4] and documents referred to in the primary decision which it may be inferred the primary judge accepted.
The primary judge's findings as to the course of the parties' relationship
[4] Primary decision [385] - [389].
The primary judge implicitly made the following findings as to the course of the parties' de facto relationship.
The appellant was born in May 1975. The respondent was born in the United Kingdom in June 1974. They met while the respondent was on a working holiday in May 2003 and commenced cohabitation in July 2003.[5] Apart from a year living in the United Kingdom in 2004,[6] the parties generally resided in Australia with the respondent employed in various positions when allowed by his visa conditions and the appellant employed in a number of government bodies.[7] They purchased a family home in a northern Perth metropolitan suburb in about 2009.[8]
[5] Primary decision [394] - [397].
[6] While the primary judge referred to the year commencing January 2014 at [400], in context this would appear to be a typographical error.
[7] Primary decision [397] - [412].
[8] Primary decision [410].
The appellant became pregnant with their first child, A, in about March 2013. Shortly prior to A's birth, the mother went on maternity leave while the respondent continued working. The appellant returned to work about nine months after A's birth on a part‑time basis. The respondent described difficulties which the appellant experienced as a new parent and arguments that occurred between them. The respondent took an active role in the care of A when he was not at work.[9]
[9] Primary decision [416] - [420].
The appellant was pregnant with the parties' second child, B, in February 2016. In March 2016, the respondent injured his shoulder at work and was placed on workers' compensation. The respondent remained on workers' compensation until December 2017. B was born in November 2016. The appellant took 15 months off work at a public authority but, due to her recent start date, was not entitled to maternity leave. The relationship between the parties after B's birth was 'highly conflictual'. The respondent again played an active role in B's care and reported the appellant struggling with another newborn child.[10]
[10] Primary decision [423] - [429].
The respondent described incidents of physical violence by the appellant directed towards himself and A in January 2017 and on 22 April 2018. Police attended the first incident and issued a 24‑hour police notice to the respondent. After the second incident, the respondent attended a police station to report the incident and was issued with another 24‑hour police notice. He left the family home and stayed in a hotel for about a week, returning after the appellant pleaded with him to do so for the sake of the children who she said she could not raise by herself.[11]
[11] Primary decision [430] - [438].
On 3 May 2018, there was an incident of family violence between the appellant and respondent which was partly video recorded on the respondent's phone. The recording was tendered as part of exhibit 7 at trial and was a principal issue of contention in the primary proceedings. The video showed the appellant assaulting the respondent in the presence of A.[12] This incident marked the end of the parties' de facto relationship.
The primary judge's findings as to the course of proceedings before trial
[12] A description of the video recording and the mothers account of the event is set out at primary decision [315] - [319].
The primary judge made the following findings as to the course of proceedings and the parties' conduct prior to the commencement of the trial of the primary proceedings.
On 4 May 2018, the respondent obtained an interim family violence restraining order against the appellant. The appellant then attended the Magistrates Court and obtained an interim family violence restraining order against the respondent. The respective family violence restraining orders were subsequently resolved by mutual undertakings.[13] The consequence of the respondent's family violence restraining order was that the appellant was excluded from the family home.[14]
[13] Primary decision [440].
[14] Primary decision [70].
The appellant commenced the primary proceedings on 29 May 2018.[15] On 7 June 2018, a family law magistrate made orders providing for the appellant to reside in the family home, which the respondent was to vacate. Orders were made providing for the children to reside with the appellant with contact with the respondent. Orders were also made restraining the parties from denigrating each other or speaking about the proceedings in the children's presence.[16]
[15] Primary decision [67].
[16] Primary decision [72] - [76].
The respondent described abusive and erratic behaviour by the appellant, including an incident when he attempted to return the children to the appellant's care on 29 July 2018. That incident resulted in the appellant accusing the respondent of taking the children and throwing his phone into the water at Hillary's Marina.[17]
[17] Primary decision [444] - [446].
In September 2018, the respondent began a relationship with his current partner, W. On 16 September 2018, the appellant hacked into the respondent's Facebook account and sent threatening and abusive messages to W. In October 2018, the appellant contacted the local government in the area in which the respondent and W were living alleging that W was running a brothel. At about this time, the appellant sent messages to the respondent making a series of false allegations about him. The appellant also contacted the respondent's workplace falsely representing that she worked for a towing company which was going to take the respondent's car.[18]
[18] Primary decision [447] - [451].
On 4 November 2018, the appellant assaulted the respondent after he returned the children to the family home. On 5 November 2018, the respondent obtained an interim family violence restraining order against the appellant. The appellant responded by seeking her own interim violence restraining order against the respondent. The appellant breached the restraining order against her and was arrested. She pleaded guilty to a breach of a family violence restraining order on 12 September 2019. In late November 2018, the appellant threatened to withhold the children from contact with the respondent.[19]
[19] Primary decision [452] - [457].
Also in October and November 2018, a childcare centre attended by A reported the appellant's physically and verbally aggressive behaviour towards A. This led the centre to refer the matter to the Department for Child Protection (DCP). There followed an engagement with the DCP, which expressed its concerns about the children's welfare but closed the case after providing the appellant with information regarding support services.[20]
[20] Primary decision [94].
DCP subsequently received reports of an incident at A's school on 27 September 2019 in which the appellant was physically aggressive towards A and B.[21]
[21] Primary decision [95] - [96].
On 8 October 2019, a family law magistrate made orders providing for the children to live with the respondent and to have unsupervised personal and video contact with the appellant. At the same time, an order was made that the children be represented in the primary proceedings by an independent children's lawyer.[22]
Trial of the primary proceedings prior to 29 August 2022
[22] Primary decision [99] - [100].
The trial of the primary proceedings commenced on 8 February 2021, at which time both parties were unrepresented.[23] The primary reasons give a very detailed description of the course of the trial, focussed on what the primary judge regarded as the appellant's disruptive behaviour. This behaviour included a refusal to answer questions in cross‑examination, emotional outbursts, a failure to attend adjourned hearings, and unreasonable objections to the conduct of the independent children's lawyer.[24]
[23] Primary decision [123].
[24] A summary of the appellant's behaviour by the respondent's counsel, which was adopted by the primary judge, appears at primary decision [128] - [129].
The following particular aspects of the course of proceedings between 9 February 2021 and 8 October 2021, as described in the primary decision, may be noted:
1.On 9 February 2021, the then counsel for the independent children's lawyer accepted the primary judge's invitation to have the file transferred to another lawyer given the difficulties he was experiencing with the appellant's cross‑examination.[25]
2.The trial recommenced on 6 September 2021, at which time the appellant sought and was refused an adjournment to allow exhibit 7 to be forensically examined. On 7 September 2021, two witnesses were interposed into the appellant's evidence. On 7 and 8 September 2021 the appellant again agitated the question of a forensic examination of exhibit 7. The proceedings were then adjourned to resume on 20 September 2021.[26]
3.The trial had to be further adjourned when the appellant did not attend on 21, 23 and 24 September 2021, claiming that she was unwell. The trial was adjourned to resume on 4 October 2021.[27]
4.On 4 October 2021, the primary judge dealt with applications in relation to a forensic report on exhibit 7. The appellant was further cross‑examined by counsel for the independent children's lawyer on 4, 5 and 6 October 2021.[28]
5.During cross‑examination on 6 October 2021, the appellant's behaviour became (in the primary judge's language) 'dysregulated, aggressive and escalating'. The primary judge ordered that the appellant be removed from the court, all applications made by the appellant be dismissed and that the matter would proceed at 11.30 am on an undefended basis.[29]
6.On 7 October 2021, the primary judge made orders reinstating the appellant's applications and adjourning the trial to 8 October 2021.[30]
7.However, on 8 October 2021, exhibit 7 was played during the appellant's cross‑examination. The appellant's responses to the cross‑examination led the primary judge to again make an order dismissing the appellant's applications and ordering the trial to proceed on an undefended basis. The proceedings were adjourned to 2 February 2022.[31]
[25] Primary decision [143] - [147].
[26] Primary decision [157] - [180].
[27] Primary decision [197] - [198], [202] - [204], [212] ‑ [214].
[28] Primary decision [215] - [217].
[29] Primary decision [219] - [222].
[30] Primary decision [227].
[31] Primary decision [240] - [241].
Also on 8 October 2021, the primary judge made orders, based on the evidence to that point, requiring the appellant to engage in 'Dialectical Behavioural therapy' and thereafter to have only supervised contact with the children.[32]
[32] Primary decision [243].
The appellant's application to be reinstated in the proceedings was heard by the primary judge on 15 December 2021. At that time the appellant was represented by counsel. In answering the appeal, the respondent relies on what was then said by counsel for the appellant. We have, accordingly, had regard to the salient aspects of the exchange between then counsel for the appellant and the primary judge.[33] In the event, the application was granted, and orders were made leading to the ultimate resumption of the trial on 29 August 2022. In the meantime, the orders for supervised access were varied on 3 May 2022.[34]
Primary proceedings from 29 August 2022 to 1 September 2022
[33] See respondent's submissions par 13 (reproducing pages 4 - 12 of the transcript of the primary proceedings on 15 December 2021).
[34] Primary decision [261] - [269], [271].
When the trial resumed on 29 August 2022, the cross‑examination of the appellant by a new counsel for the independent children's lawyer (the previous lawyer having accepted judicial appointment) continued until the late afternoon of 30 August 2022 (with one witness interposed). The appellant was cross‑examined by counsel for the respondent (who by this stage was represented) on 31 August 2022 and 1 September 2022. The primary judge's reasons described the appellant's responses to the cross‑examination as again becoming argumentative.[35] The judge described what then occurred in the following terms:[36]
Notwithstanding the warnings given over the previous three days and a short adjournment, cross‑examination resumed thereafter and then continued until the luncheon adjournment after which Ms Mansfield's cross‑examination of the mother continued.
Ultimately, the mother's conduct escalated to the point where I was not prepared to continue with the mother as a party to the proceedings for the reasons given and in the face of the numerous warnings given as to the consequences.
The matter proceeded on an undefended basis on 2 September 2022 at which time I refused the oral application brought by counsel for the mother to be reinstated in the proceedings.
[35] Primary decision [273] - [285].
[36] Primary decision [286] - [288].
Having reviewed the trial transcript, we make the following observations as to the way the trial had proceeded over the four days from 29 August 2022 to 1 September 2022. At this time, the appellant was represented by Mr Bannerman. Mr Rodda appeared as counsel for the independent children's lawyer and Ms Mansfield appeared for the respondent.
Almost all of the four days were occupied by the cross‑examination of the appellant by Mr Rodda and Ms Mansfield. There was a limited amount of discussion of issues between counsel and the interposition of a witness whose oral evidence was brief. The court generally started at about 10 am and, with the usual lunchtime adjournment, finished at about 4.20 pm in the afternoon. The incident that led the trial judge to permanently exclude the appellant from the trial occurred at about 3.30 pm on 1 September 2022. By that time, the appellant had conservatively been on the witness stand for well over 15 hours during that week of the hearing, in the context where she had previously been cross‑examined by counsel for the independent children's lawyer over 12 days (on the respondent's calculations).[37]
[37] Respondent's submissions, par 3.
This is an extraordinarily long time for a single witness to be cross‑examined. Further, reading it fairly and as a whole, our review of the transcript of the trial from 29 August 2022 to 1 September 2022 indicates that the length of the cross‑examination over those days was only partly attributable to the manner in which the appellant framed her answers to questions. There were, on our review, other material contributing factors to the length of the cross-examination which were not attributable to the appellant.
There were occasions on which the appellant's responses to questions could fairly be characterised as non‑responsive obfuscation or argument. That is regrettable, but perhaps not unusual given the issues at hand and the nature and length of the cross-examination. However, on the whole, the appellant generally appears to have been attempting to answer the many questions which were posed to her over the four‑day period.
There were many occasions on which the trial judge directed the appellant to answer the question. On some of those occasions, it is arguable that the appellant's answer did not stray beyond the scope of the questions, for example where the question broadly asked for the appellant's response to a proposition.[38]
[38] See, for example, trial ts 29/8/21 at 19, 22 - 23, 57 - 58.
At some points in the transcript, the primary judge intervened to essentially cross‑examine the appellant. For example, the primary judge intervened in the following manner when the appellant was being asked by Ms Mansfield about an email she had sent to the independent children's lawyer:[39]
[39] Trial ts 30/8/22 at 112.
Do you agree that your email to Ms Cohen on 26 November is not an email that shows remorse for making the post?---No.
Sorry, is that you're agreeing or disagreeing?---No, I don't agree.
HIS HONOUR: Well, please, where is the remorse; can you take me to it?---Well, I'm frustrated.
No. No, you were asked about remorse. You didn't agree that it didn't show remorse. I'm asking you to take me to where you show any remorse in the email?---Well, that specific email obviously is only one part of my session with Ms Commons, so obviously I was very - - -
This is an email to the independent children's lawyer?---Sorry. Yes. And I was very frustrated at the situation.
So that's not remorse?---No, it's - - -
That's justification. Where is the remorse?---Frustration - - -
Where is the remorse that you - please take me to it?---I said happy birthday to [B]:
Happy fifth birthday - - -
Can you take me to it, or do you accept the fact that it doesn't show any remorse?---Well, the email said:
Happy fifth birthday, [B]. Looks like fun. Thank you for taking such good care of him.
Carry on, Ms Mansfield.
Another example of the judge's intervention arose when Mr Rodda was asking the appellant about a recording of a discussion with A in which the appellant had made derogatory comments about the respondent. The appellant had accepted that the recording showed 'awful behaviour'.[40] The primary judge then intervened in the following manner:[41]
[40] Trial ts 30/8/22 at 102.
[41] Trial ts 30/8/22 at 103 - 104.
HIS HONOUR: Before you go, there's one question I have - - -
RODDA, MR: Yes, sir.
HIS HONOUR: - - - arising from that piece of vision is at that stage [A] was six. Correct?---2020, yes.
And [B] was three. He had turned three in the November before, hadn't he?---Yes.
Yes. Why - let me put it this way. The impression I get is that all of the denigration and all of the inappropriate comments are made to [A]. Is that because at six years of age, as opposed to three, as [B] was, who didn't receive the same comments, that [A] had the emotional maturity to cope with it?---No. I think it was just inappropriate and I shouldn't have done it.
Well, why was it - you have that insight now, but why was it that you differentiated before the boys in terms of what you said to them about their father, right or wrong?---I didn't specifically intentionally do that. I think it was probably a totally inappropriate phone call, as I'm well aware, and it wouldn't have - it wasn't appropriate for either of the boys. It wasn't - - -
Would you agree with me as a general proposition, and bearing in mind it's based on the evidence as seen - and I accept there's a great body of evidence - that [A] seems to be the recipient of the consequences of your frustration and [B] does not? Do you agree with that general proposition?---That's not intentional. That's not intentional.
I asked you whether you agreed with that proposition?---No.
Sorry. You do or you don't?---No.
You don't. That the boys have had to suffer equally?---I - I don't think either of them should have suffered. I regret the behaviour.
Another example of the trial judge's intervention appears in the transcript of proceedings on 31 August 2022:[42]
HIS HONOUR: Ms [P], you've told me on multiple occasions that you've done all these courses about co-parenting, and that this is the best start for anybody in terms of co-parenting. Tell me, do you think that the 5 messages that Ms Mansfield has asked you about are examples of co‑parenting?---I think I'm frustrated and, obviously, they could be worded in a better way.
So would you agree with me that it could be said that you're not leading by example?---Well, I'm frustrated …
[42] Trial ts 31/8/22 at 95.
Despite the length of the cross‑examination, the appellant appears from the transcript to have generally maintained her composure during the hearings on 29, 30 and 31 August 2022.
An exception occurred on the morning of 31 August 2022. Ms Mansfield was cross‑examining the appellant about statements which the appellant had made to a magistrate in a hearing on 10 January 2019. Ms Mansfield was in effect putting to the appellant that she had misled the magistrate about the existence of a court order. The following exchange ensued:[43]
So you had been in the court for more than six months at the time that you made this application to the Magistrates Court?---I'm not a lawyer. I don't know the legal terms.
HIS HONOUR: Just answer the question. Is that a correct statement, [Ms P]?---So I am - I was in the court, but I am in no way, shape or form - as the court are aware - legally trained.
Do you know the difference between telling the truth and telling a lie, [Ms P]?---Yes, I do.
Good. Thank you?---Can I please ask - just for my own peace of mind, because this is day three. Day 18 of me on the stand again, going over this information. I did it before without a lawyer. Now I have a lawyer. Of what the day is going to entail, please. Just so I have an idea.
No. You - no. As has been previously explained to you on many occasions, [Ms P], it is neither counsel's obligation nor the court's obligation to indicate about what matters you will be cross-examining. You've not- - -?---Not the matters I'm cross-examined by - - -
Do not interrupt me, please. You have not been cross-examined previously on behalf of [the respondent]. You now are being, and you will answer the questions unless a proper objection is taken. Thank you. Please proceed, Ms Mansfield.
[43] Trial ts 31/8/22 at 6 ‑ 7.
Shortly thereafter, Ms Mansfield proceeded to question the appellant about Facebook messages. When presented with the message, which showed what the appellant regarded as a recent photograph of her, the appellant appeared to become upset and expressed concern that W had 'hacked' her account.[44]
[44] Trial ts 31/8/22 at 8.
Shortly thereafter, and while being cross‑examined about evidence she had previously given of the respondent striking her in the face, the appellant was asked to identify where in her filed material she had previously deposed to that event occurring. The appellant then asked for a 5‑minute break and indicated that she felt the need for a support person. The primary judge denied these requests.[45] The appellant then became clearly upset after describing her difficulty in finding an evidentiary reference. The appellant indicated that she was finding the experience of giving evidence over such a long time, and being accused of lying, traumatising.[46] Before adjourning for 5 minutes, the primary judge said:[47]
And, [Ms P], listen to me and listen to me very, very clearly. When I let you back into this matter for the fourth time - or was it the third time - I'm sorry, I may be mistaken - there were very strict rules about your conduct. And at the moment, you're slipping very much back to the conduct that caused me to dismiss your application- - -?---I'm trying - - -
- - - and proceed on an undefended basis. And if that's what you wish me to do, you just keep going. I will take a 5-minute break.
After the break, the appellant's evidence was more composed for the rest of the day.
[45] Trial ts 31/8/22 at 15.
[46] Trial ts 31/8/22 at 15 - 17.
[47] Trial ts 31/8/22 at 18.
Shortly before adjourning for the day on 31 August 2022, the primary judge raised a matter concerning the registration of motor vehicles in an arguably unorthodox manner, which caused the appellant to again become upset:[48]
[48] Trial ts 31/8/22 at 100 - 102.
Just before you go on to anything else, Ms Mansfield, now, please correct me if I'm wrong, anybody, but as we were flicking through the messages, there was an issue raised about the car, and as I read it, [the respondent] suggested that, [Ms P], you transfer the car to him, did he not?---Five years ago I was arrested. I'm not sure if you - - -
Can you just answer my question, please?---I've so had enough of this, honestly. I have been asking him to transfer that. I've had enough of this.
Did he not suggest that the vehicle - - -?---I've had enough of this, like being enabled. I've had enough, honestly. Why is he still driving the car?
Ms Mansfield, if you've got it at your fingertips, can you take me to the message?
THE WITNESS: I've been asking him to transfer that car, or something to be done. There has been hours and hours spent in this court about that car. Nothing has occurred. I've been arrested for trying to get the car sorted. I have had enough of this car. I didn't want a Porsche Cayenne, and he got one because he had no credit rating, in my name, and four years later - - -
HIS HONOUR: Can you just stop, please? Thank you.
THE WITNESS: - - - this is still going on.
HIS HONOUR: Just stop.
BANNERMAN, MR: 252, sir.
HIS HONOUR: 252. Thank you. 23 February, did you not receive a message from Mr - - -?---I have sent him many messages, your Honour.
Please don't interrupt me further, [Ms P]?---Sorry, your Honour.
Continuing:
I will organise for the car to be transferred in my name. I will forward you along the paperwork, then the car issue can be resolved. Thanks.
What happened?---Well, we're still in Family Court, so.
No. No. No, why wasn't the car transferred?---Well, then how does the asset split work, I suppose? I'm not sure.
Well, it makes no difference - - -?---There would have to be more communication about it, wouldn't there?
But it makes no difference if the car is in his name. It's still an asset to be considered, isn't it?---Well, I'm not sure. This has been going on for five years.
Thank you, Ms Mansfield. Well, if I can tell you this, that it makes absolutely no difference who the registered proprietor of the vehicle is, would it help you if the vehicle was transferred into [the respondent's] name?---Yes, if I am allowed to keep my car.
Have you got the transfer papers?---So if I can keep my car, please, because in the conciliation conference, he wanted both cars.
Don't tell me what happened in the conciliation conference. I asked you whether you were prepared to transfer it over. Now you want to enter into a negotiation. I- - -?---Because I need a car.
Just let me finish.
THE WITNESS: This is so ridiculous. This is so ridiculous.
HIS HONOUR: Really, get a hold of yourself, [Ms P].
THE WITNESS: Honestly.
HIS HONOUR: Right.
THE WITNESS: Honestly.
HIS HONOUR: I'm trying to resolve an issue that seems to occupy an inordinate amount of your thinking. In terms of the transfer of the vehicles - - -
MANSFIELD, MS: We can have the paperwork tomorrow, sir.
HIS HONOUR: Good, and I suggest - - -
THE WITNESS: So can I, please, keep my car?
HIS HONOUR: And I suggest that there be mirrored paperwork in terms of the vehicle that [Ms P] has. Is that an issue?
BANNERMAN, MR: No, it's in - both vehicles are registered to [Ms P] at this point in time, so the only document we would require to be - - -
HIS HONOUR: Well, there's no issue.
Cross‑examination of the appellant by Ms Mansfield proceeded without notable incident on the morning of 1 September 2022 until a point at which Ms Mansfield put a Commonwealth Bank statement to the appellant. The cross‑examination related to evidence the appellant had given on 5 October 2021 to the effect that the respondent had 'left a lot of debt' and she withdrew some superannuation to pay that debt. The appellant was taken to a part of the bank statement which showed a payment of $7,841 she had received from the Government Employees Superannuation Board as a COVID‑19 payment.[49] Ms Mansfield then asked the appellant the following question about the statement:[50]
[49] Trial ts 1/9/22 at 40 - 41.
[50] Trial ts 1/9/22 at 42 - 44.
MANSFIELD, MS: Okay?---So - - - [Ms P], can you identify for me where in this two and a bit pages you used that money to pay bills that [the respondent] had left?---So in the subpoenaed document, Ms Mansfield, you have - - -
HIS HONOUR: You've asked a specific question. [Ms P], answer it?---I paid - you have to show GESB the bills before they will release the money.
Answer the question, [Ms P]. This is your last warning, [Ms P]. Answer - - -?---This man is - I'm going to ask for a quick - - -
Answer the question that you have been asked by Ms Mansfield. Please, sit down, listen to the question and answer it?---I would like leave to be able to provide that evidence, please, your Honour.
You will answer the question that has been - - -?---Because I cannot look at this document.
[Ms P], I will take you back to our exchange on 15 December last year. You are on your last warning?---He took everything.
You are on your last warning?---I didn't gamble, your Honour. I didn't gamble. I paid the price for the gambling.
Are you going to answer Ms Mansfield's question?---I think so. This shows - you have to show the bills when you - - -
Are you going to answer Ms Mansfield's question?---I need more time to be able to go through the documents, please, so I can - - -
The document is in front of you?---No. Please, I'm asking for more time.
Please, go down the document - - -?---I am, please, asking for more time.
- - and identify the - - -?---I'm, please, asking for more time.
BANNERMAN, MR: (indistinct) my client could be reminded about the role that I have in terms of re-examination, given that she has not seen that, so far, in the trial.
HIS HONOUR: Well, I'm sure she has been reminded previously, Mr Bannerman.
BANNERMAN, MR: She has been, sir, yes.
HIS HONOUR: Yes. Please, re-ask your question, Ms Mansfield.
MANSFIELD, MS: [Ms P], can you please identify for me in this transaction listing where you say you spent the money you withdrew from your superannuation fund to pay bills that [the respondent] had left?---This only goes to what date? And this is the first time I'm seeing it. It has been thrown at me on the stand. I would need - as I've, please, asked for - time, because when you withdraw super, you have to actually provide the bills before they give it.
HIS HONOUR: Right. [Ms P], do you want me to proceed with this matter on an undefended basis?---No, but you, please, need to - - -
Right?--- - - - have some compassion for me, please.
You've had so many opportunities, [Ms P], and they're running out?---Honestly - honestly - - -You're being asked a very simple question. You're being asked to go through - no, no. Mr Bannerman has reminded me, again, to remind you that you have the capacity to answer matters arising out of cross-examination and re-examination. You're being asked to go down a list. If you look at the right-hand side of that list, it identifies the transactions?---I'm asking - - -
You're being asked - don't interrupt me?---I'm - - -
You're being asked to identify which of those transactions relate to the bills about which you have given evidence in the past?---That is only one document. I would need time to be able to go through - - -
Don't argue with me. Just go through the list?---I need time - - -
Thank you?--- - - - to go through to show the bills that I paid. I need some time so I can go through and not just have one page where he tried to take everything from me -taken my children or my money - my - everything, everything, everything, everything. He wants me to be left with the clothes on my back. I have paid the price for someone else to gamble and I need, please, some time so I can go through not just one page - I had more than one account, then - and show you the bills. I can get you the bills. Not to be thrown on the stand and gone, 'Yes, I squandered it all.' No. I paid bills. I paid bills. I have had to ring debt collectors. I have had to - I didn't gamble $150,000.
Mr Bannerman - - -
BANNERMAN, MR: Can I raise - - -
HIS HONOUR: I'm going to rise now. Mr Bannerman, you have leave to remind your client that if she continues with this behaviour once more, this matter will proceed on an undefended basis. Everybody in this court has had to put up with enough.
BANNERMAN, MR: Thank you, sir.
After a short adjournment, Ms Mansfield's cross‑examination of the appellant continued without incident until after the lunchtime adjournment.
On the afternoon of 1 September 2022, the appellant was being cross‑examined in relation to financial matters. The judge intervened in the following manner:[51]
[51] Trial ts 1/9/22 at 82 - 84.
[MANSFIELD, MS]: You would agree with me, though, [Ms P], that all those AUSTRAC notifications indicate [the respondent's step‑father] paying [the respondent]?---Yes. There is money coming in from a Lloyd's of London account to [the respondent].
And you would agree with me that there's no evidence of [the respondent] paying [the respondent's step‑father]?---No, I wouldn't agree that.
Well, where is that in those documents, [Ms P]?---Well, when I have a chance to go through, I will show you the cash withdrawals.
HIS HONOUR: It has been a big part of your case, from day one, [Ms P], that [the respondent] has hidden monies overseas?---Yes.
You've had four years of litigation to identify the documents and to be able to refer to the documents. You were able to identify what CSA has done; you've been able to offer argument about questions that are being asked of you. That is a fairly significant matter that you raise, and it has been put to you very specifically that there is no evidence that supports the contention?---I don't agree because I have other documents. But being on the stand- - -
So you've disclosed those documents, have you?---I would need time to go home and - - -
Have you disclosed the documents that you say supports one of the pillars of your case?---Well, page 60 - - -
Have you disclosed the documents that you say supports - - -?---Page 68 to 76 - - -
- - - one of the pillars of your case?--- - - - your Honour, shows AUSTRAC money coming in from a Lloyd's of London account to [the respondent] - - -
Ms Mansfield has just pointed that out to you. But you're ignoring my question because what she has put to you is that all of that shows the money coming from [the respondent's step‑father] to [the respondent]?---And tonight, I will be able to go home and pinpoint - on the stand, I cannot - where [the respondent] has withdrawn large cash sums, and he told me he gave it to [the respondent's step‑father].
So you say you have documents at home that support that contention?---I will have to go through all my documents. But he told me - - -
Is it your position that you have documents that support that contention?---I will go through all my documents.
Is it your case that you have the documents that support that contention, [Ms P]?---If I could please ask for five minutes.
Just answer my question?---Please - please can I ask for five minutes?
No?---I'm finding - - -
Sit down and answer my question. It's a very straightforward question. I'm sure you can answer it?---He gambled $150,000.
Good. Now, answer my question please?---I will need sometime to go home - - -
Is it your case that you have documents in your possession that support that contention?---My conclusion - - -
That's a yes or no. And if you don't know, after four years of maintaining that as a position as one of the pillars of your case, I'm somewhat staggered?---I've got 600 pages of documents at home of [the respondent's] bank accounts that were sent to me from the Child Support Agency and AAT. I can go through that tonight and pinpoint for you the cash withdrawals that were coming out of those accounts.
And you've disclosed those documents?---Yes. I think your Honour will remember that - - -
You, in fact, filed a bundle of documents - - -?---I know.
- - - that you said supported that contention?---And I had to slimline it to 100 pages. So then I've given Mr Bannerman's office a copy of all of the readable version of the AAT CSA documents that were the whole 475 pages, because I was not allowed to file more than 100 pages with an affidavit.
You see, [Ms P], I might just make an observation, and it probably pre‑empts an observation that counsel is going to make, in any event, it's remarkable that you can remember with such absolute clarity matters that you say support your case. But when you're actually asked to identify something that supports a contention, you obfuscate, you don't answer, you deflect?---With all due- - -
Which leaves me, unfortunately, to a conclusion that your evidence about it is unreliable. And that is exactly what counsel is going to say to me at the end of the trial. I'm sure of that. Now, what I'm simply saying to you is if you've got the documents that support the contention, and you can establish it, then fine?---Okay.
Ms Mansfield then proceeded with her cross‑examination, which shortly thereafter moved on to a discussion of text messages between the appellant and respondent in relation to the appellant's contact with B on his birthday. The messages discussed the arranged times at which the appellant would see B on his birthday. The cross‑examination proceeded as follows:[52]
[52] Primary ts 1/9/22 at pages 90 - 92.
MANSFIELD, MS: Well, could you, please, identify for me, prior to [the respondent] sending you that message on Sunday, 15 November, where you said yes to spending time with [B] on his birthday from 12 to 5?---I was at Flinderz Café, from recollection, from 11 am, waiting. There's - these messages are not in order. He did not bring [B]. I did not get to see [B], my dad did not get to see [B] and he wanted us to drive to [a southern suburb].
HIS HONOUR: Now can you, please, answer the question?---How many birthdays am I going to miss?
Can you, please, answer the question, [Ms P]?---It was a - it was a very emotional day, because I was sitting there, waiting, and he didn't come. He caused chaos, as he does. He has been given control, and [B] did not get - - -
Right. Just stop, [Ms P]. Just stop. And now focus on the question that has been asked of you, please?---Basically, the answer is I did not get to see [B] on his birthday.
The question asked of you was where these messages, which have been put to as being in order, do you say that you agreed with the proposition of 12 to 5?---There is another affidavit that had these attached.
Just answer the question, please?---And this is not in order. This is not in order, and I can't even hardly read it, but I know that I was at Flinderz Café from 11 am and that - - -
Right. Well, I will take it that she cannot identify a message as to agreement.
MANSFIELD, MS: Thank you, sir.
THE WITNESS: Can I, please, ask for five minutes? Five minutes, please - please. I missed my son's birthday two years in a row.
HIS HONOUR: Yes, next question, Ms Mansfield.
THE WITNESS: One, he broke a court order, the next he was given.
MANSFIELD, MS: [Ms P], could you, please, turn to box- - -
THE WITNESS: Can I, please, have five minutes, your Honour?
HIS HONOUR: No.
THE WITNESS: Please. Please. Please. I've had four years of this.
HIS HONOUR: I've wasted enough time over your histrionics, [Ms P]. Now, you can listen to the question and answer it - - -
THE WITNESS: Please.
HIS HONOUR: - - - or you can have the option of leaving.
THE WITNESS: This is honestly so terrible. There's two little boys here.
HIS HONOUR: Just ask the question, please.
THE WITNESS: Not seeing their mum on their birthday.
MANSFIELD, MS: Ms - - -
THE WITNESS: And how is this supported? I do not understand how breaking a order can be justified.
HIS HONOUR: Thank you. That's it. I'm proceeding, undefended in this matter.
THE WITNESS: Why is that? Please.
HIS HONOUR: Thank you. We will adjourn.
After a short adjournment, the primary judge returned and gave the following oral reasons:[53]
Counsel, firstly, I apologise to all of you, and I apologise also to the members of the security staff, that you have had to be left putting up with the display that, whilst I could not witness it in person, I could hear what was happening in the courtroom, and I apologise that you were placed in that position.
However, when I refer back to the exchange on 15 December and the terms upon which [Ms P] was entitled to rejoin these proceedings, it is my view that her continued non‑responsiveness, her behaviour, her argument posture, her deflection, her refusal to answer questions and engage, as in any productive, or in a very limited productive way, other than on her terms, is of such a nature that I am satisfied that she is not properly participating in the proceedings.
And, accordingly, I will dismiss her Form 1 application and proceed, on an undefended basis, on the Form 1A as amended by the minute of orders filed and accepted for filing at the resumption of the trial.
[53] Primary ts 1/9/22 at pages 90 - 92.
On 1 September 2022, the judge ordered that all applications and responses filed by the appellant be dismissed and, subject to any further order of the court, the case proceed on an undefended basis.
Reinstatement decision on 2 September 2022
As noted above at [5], on 2 September 2022 the primary judge considered and dismissed an application for the appellant to be reinstated to the proceedings, for ex tempore reasons subsequently published as the reinstatement decision.
The reinstatement decision contains an account of proceedings to the point where the appellant was reinstated as a party to the proceedings on 15 December 2021. The primary judge said:[54]
Having Mr Bannerman who, as I advised, the mother, is very highly regarded by the Court as an excellent solicitor advocate, did not constrain the mother's behaviour. The same again became apparent on the first day of the resumed trial. The same has escalated. Again, numerous warnings had been given to the mother. Notwithstanding my observations made on 15 December 2021, that she would be given but one chance, she was given many chances over the past four days to control her behaviour.
[54] Reinstatement decision [31].
The primary judge described the way in which the respondent's case was put to the appellant and the appellant's claims that she had undisclosed documents which would debunk the evidence adduced by the respondent.[55] The judge referred to what he described as indulgences which had been provided to the appellant and said:[56]
She was granted an indulgence as to documents produced late in support of her propositions and, again, when asked about documents, albeit recently produced, the mother again insisted that there were further documents that were not before the Court that would have been within her possession and control, and again adopted a posture of argument, avoidance, excuse, and obfuscation.
The disengagement in proceedings can take many forms. They can be, as Mr Bannerman has observed in his exchanges with me this morning, as they were in Tate v Tate (2000) FLC 93‑047, they can be as they have been in this case, where they have been more insidious, and as clearly directed towards the miscarriage of justice as they were in Tate v Tate (supra), but not as obviously.
[55] Reinstatement decision [33] - [41].
[56] Reinstatement decision [43] - [44].
After referring to other matters, the primary judge concluded:[57]
To remove a parent from proceedings relating to the welfare of their children is a step that is taken by the Court with great reluctance. It is not a step the Court enjoys, although, sadly, has had to take it in complex cases or cases involving family violence, abuse, substance addiction and the like, with an unfortunate regularity where people don't engage with the proceedings.
However, the step that I've taken in this case is unusual because the nature of the disengagement with the proceedings is unusual, and that is why I have referred to the examples that I have. It is a paraphrasing of many, many examples that are apparent throughout the transcript. They are, however, a disengagement, nonetheless.
The Court cannot, will not, nor should it be expected to accept, endorse or countenance the behaviours that the Court, counsel now present and previously, the father, my staff, other litigants, the staff of this court, and any visiting public should have to endure, nor, notably and particularly, should the security staff of this court have to deal with and manage the conduct and behaviours they have had to manage during the days of this trial.
I am not satisfied that the reintroduction of the mother in these proceedings where the ICL has indicated that it is their view that cross‑examination of the father to test his case in the interests of the children is appropriate and warranted. The reintroduction of the mother or my failure to do so will not, in my view, prejudice the child‑related proceedings, given the excellence in terms of the representation of the children before the Court through the ICL and counsel appearing.
[57] Reinstatement decision [48] - [51].
The primary judge's ultimate conclusion was expressed in the following terms:[58]
I am not satisfied that I should re‑admit the mother to these proceedings. In making that decision, I am not satisfied on any basis that the mother's behaviour will change, nor, given the history of her conduct to date, has there been any significant change in the mother's behaviour, nor is there anything that would suggest that the same will improve for the balance of the trial, whether it is in the witness box or elsewhere.
…
Her level of engagement or disengagement with these proceedings has reached a point where, on balance, I am not satisfied, for the reasons I've given, that the interests of justice would fail to be served by my failure to exercise my discretion in the mother's favour.
Proceedings in the absence of the appellant
[58] Reinstatement decision [55], [57].
Orders made on 2 September 2022 also provided for further video and audio communications between the appellant and the children to be by the 'Talking Parents' application (which recorded the conversations), and for the trial to resume on 1 December 2022.[59]
[59] Primary decision [289].
The primary decision reproduces extracts of a transcript of communications between the appellant and the children on the Talking Parents application on 30 October 2022, 6 November 2022, 20 November 2022 and 27 November 2022. Prima facie, aspects of the discussion appear to contravene the injunctions against denigrating the respondent or mentioning the family law proceedings in the presence of the children. The primary judge described the calls as featuring 'spontaneous and random denigration' of the respondent and W.[60]
[60] Primary decision [646], [654].
On 30 November 2022, the appellant filed an application in the primary proceedings for the judge to recuse himself from the trial on grounds of apprehended bias. The primary judge heard and dismissed that application on 1 December 2022, for ex tempore reasons subsequently published as the recusal reasons.[61]
[61] Primary decision [291].
On 1 December 2022, the trial proceeded without the appellant participating in the proceedings, although she was present in the back of the courtroom. During the remainder of the trial, the court heard oral evidence from two expert witnesses called by the independent children's lawyer: a forensic consultant psychiatrist, Dr Gosnia Wojnarowska, and a clinical psychologist, Lauren Paganoni.
Expert evidence at trial
It is convenient to summarise the evidence of Dr Wojnarowska and Ms Paganoni here.
Dr Gosia Wojnarowska
Dr Wojnarowska prepared a report on 8 August 2021, which outlined the appellant's psychiatric history, noting previous treatment for psychosis and the mother declining anti‑depressant medication in around 2018/2019.[62] The report referred to the appellant's 'long history of emotional and behavioural instability' and contained the following notable comments about the appellant:[63]
1.Her inability to self‑regulate is associated with her emotionally unstable personality structure.
2.She fulfils the criteria for Emotionally Unstable (Borderline) Personality Disorder (BPD).
3.Her inability to contain her negative emotions and views of the respondent highlights 'self‑serving attitudes with lack of regard to her children's emotional state'.
4.She has displayed behaviours that are 'not conducive to [modelling] pro‑social norms for the children'.
5.She has capacity in future to parent the children in a positive way providing she engages in treatment and develops insight into her shortcomings.
6.She is 'unable to contain her resentment and hostility' towards the respondent and 'struggles with accepting responsibility for her behaviour'.
7.She does not pose a risk of inflicting a serious physical injury on the children, but her emotional instability is affecting the children's emotional wellbeing, which might be negated if she refrains from denigrating the respondent in front of the children.
8.She has very limited insight into her emotional instability and how it affects others, including the children.
[62] Primary decision [546] ‑ [555].
[63] Primary decision [555] ‑ [557].
Dr Wojnarowska produced an updated report on 22 August 2022 prior to the resumption of the trial.[64] In response to reports of Ms Della Commons (the appellant's treating psychologist, who disagreed with Dr Wojnarowska's diagnosis of BPD),[65] Dr Wojnarowska's updated report noted that the appellant had responded well to the treatment recommended for BPD.[66] However, in Dr Wojnarowska's oral evidence on 2 December 2022, she significantly altered her opinion.[67]
[64] Primary decision [571].
[65] Primary decision [570].
[66] Primary decision [572]; see also discussion of Ms Commons' reports at [559] ‑ [570], which the trial judge was concerned about accepting.
[67] Primary decision [573].
Prior to giving evidence on 2 December 2022, Dr Wojnarowska reviewed evidence of recorded video calls between the mother and the children, and videos of excerpts of the primary proceedings, which became exhibits 67 and 69.[68] Dr Wojnarowska gave evidence as to the damage to the children that could result from the mother's denigration of the father,[69] the existing psychological intervention with Ms Commons being ineffective,[70] the likely poor outcome of court‑ordered therapy as opposed to voluntary therapy,[71] and to the impact of the mother's emotionally unstable personality disorder on the children.[72] The primary judge commented that Dr Wojnarowska concluded that she would not support the mother having unsupervised visits.[73]
Ms Lauren Paganoni
[68] Primary decision [659].
[69] Primary decision [660].
[70] Primary decision [661] ‑ [662], [664].
[71] Primary decision [665] ‑ [666].
[72] Primary decision [667].
[73] Primary decision [662].
Ms Paganoni, a clinical psychologist, prepared three reports on 13 July 2020, 1 February 2022 and 14 August 2022.[74]
[74] Primary decision [577].
In her first report, Ms Paganoni recorded both parties' clinical background, noting the appellant's minimisation of her mental health issues.[75] Ms Paganoni recorded the appellant's description of the respondent as 'narcissistic, abusive and vindictive', while presenting as charming and friendly.[76] She made observations of A's behaviour from 2018 to 2019, based on information provided by A's school. Ms Paganoni noted that A had been more settled and engaged, was participating more in group activities and appeared more focused in class since being in the respondent's care.[77] With regard to the impact of the parenting dispute on the children, Ms Paganoni opined that the post‑separation conflict was creating more anxiety, stress and confusion for the children and that exposure to the conflict was a likely major factor in relation to A's emotional, social and behaviour issues at school.[78] Ms Paganoni further commented that the risk of the children being exposed to harm when the appellant struggles with her own issues increased significantly, given that the parties were not living together,[79] before ultimately recommending that the children live with the respondent and spend time with the appellant.[80]
[75] Primary decision [579] ‑ [580].
[76] Primary decision [581].
[77] Primary decision [583] ‑ [588].
[78] Primary decision [591].
[79] Primary decision [592].
[80] Primary decision [596].
In her second report, Ms Paganoni detailed the appellant's tendency to fixate on her negative views of the respondent, her reported engagement with parenting programs, services, therapy and counselling[81] and A's responses to being asked about the appellant.[82] The primary judge noted that it was difficult to reconcile the appellant's attempts to cancel A's psychologist appointments with child focus and identification of A's needs rather than the appellant's.[83] Ms Paganoni also outlined existing peer review research on the impact of unstable personality disorders on parenting capacity or on a child's emotional and psychological development. She concluded that the appellant's inability to regulate her emotions would pose a significant risk of emotional and psychological harm to the children. She also opined that the appellant required significant long‑term support and psychological intervention to assist her.[84] The primary judge found that Ms Paganoni's observations were consistent with the court's observations of the appellant's behaviour.[85]
[81] Primary decision [605].
[82] Primary decision [612].
[83] Primary decision [613] ‑ [614].
[84] Primary decision [620] ‑ [621].
[85] Primary decision [623].
In her third report, Ms Paganoni reported that A had made significant progress across many areas. The respondent appeared to be providing well for the children but had not engaged in the recommended counselling himself. The appellant continued to attend parenting programs. However, Ms Paganoni was concerned about the appellant's ability to refrain from exposing the children to her thoughts and feelings regarding the parenting dispute.[86]
[86] Primary decision [641].
Prior to the resumption of the trial in December 2022, Ms Paganoni viewed the recordings in exhibit 67.[87] On 2 December 2022, Ms Paganoni gave evidence as to the potential negative effects to the children of the appellant's interactions with them,[88] and her opinion on the respondent's gambling and mental health issues.[89] Ms Paganoni said she would be concerned about the appellant spending unsupervised time with the children if she is unable to engage in the recommended services. Ms Paganoni gave evidence to the effect that she would be concerned about the appellant's capacity to change her behaviour without intervention.[90]
[87] Primary decision [642] ‑ [643], [655].
[88] Primary decision [670], [675].
[89] Primary decision [672] ‑ [673].
[90] Primary decision [676].
At one point, the following exchange occurred between the primary judge and Ms Paganoni:[91]
HIS HONOUR: What if she doesn't, because it's very apparent to me - - - [Ms P] is sitting at the back of the court, as you would have seen, and she's requested my permission to do so. And I said, 'Well, it's an open court but you have to behave yourself.' During your evidence and during the evidence earlier today from the psychiatrist, her body language has spoken volumes in terms of the negative response to recommendations to diagnoses and to comments that have been made. I have some concerns about whether or not she would voluntarily submit to the type of engagement that has been suggested earlier today. And, in those circumstances, how - does that impact or does it not impact upon your view in terms of what a future relationship between the boys and their mother would look like?
THE WITNESS: Yes, certainly. If [Ms P] was unable to engage in the recommended services, I would have concerns about her spending unsupervised time with the children.
HIS HONOUR: What - - - the other concern that I would like you to comment on is, given that negativity and, in fairness to [Ms P], she has expressed that fairly openly during the time that she was giving evidence, the video calls between the boys - and I appreciate there was some frustrations there and when an attempt was made by [W] to cure one of those, she was criticised. But, notwithstanding the fact that we are in the middle of proceedings and knowledge that the calls are being recorded pursuant to my order, she cannot stop herself from engaging in behaves that she, by now, ought to know impact negatively upon the psychological welfare of her children. What confidence can I have that that will ever improve?
THE WITNESS: And I agree. You know, certainly that was something that I outlined, I think it was in my last report that, despite a lot of intervention and despite, you know, the very serious outcomes of this court and the fact that this is typically a situation where people are on their best behaviour and try to present, you know, at their best and as though they're making an improvement, [Ms P] still really struggles to do that. And therefore I would have concerns in terms of - regardless, definitely if there was no intervention, her ability to be able to do that. But I do believe that the intervention would need to be longer term because I think this is going to be something that she will struggle with forevermore.
HIS HONOUR: That has not ever been put to me as a no contact case in terms - - - but I'm yet to hear from counsel, of course, at the conclusion of the evidence but if there isn't any change in her behaviour, which is going to be the worse or the less preferred outcome for the boys; continuing with their mother in terms of the way in which she behaves or discontinuing the relationship they have with their mother?
THE WITNESS: And I think that the greater risk would be for the children to have contact with the mother in the way that she's currently presenting. And while, obviously, that is - - - would be - it would be difficult for the children to not have contact with the mother, they appear to have formed - - - they appear to have a good relationship with the father, they appear to have formed a close bond with [W]. And naturally the children would require support if they ceased contact with the mother through counselling. But I feel that no contact would have less of an impact than if they were to continue to be exposed to these sorts of behaviours moving forward. (emphasis added)
[91] Primary decision [676].
Overall, the primary judge described the totality of Dr Wojnarowska's and Ms Paganoni's evidence as indicating that the mother was 'presently incapable of controlling herself and engaging in appropriate levels with the children'.[92]
Conclusion of trial
[92] Primary decision [678].
After oral evidence was received from the above expert witnesses on 2 December 2022, the trial was adjourned to 14 December 2022 for closing submissions.
On 4 December 2022, which the judge noted was two days after the appellant heard expert evidence of the impact that her behaviour had on the children, a further conversation took place between the appellant and the children over the Talking Parents application, in which the appellant made denigrating comments about the respondent to the children.[93]
[93] Primary decision [682] - [684].
After receiving closing submissions on 14 December 2022, the primary judge reserved his decision.
Primary judge's approach
The primary decision was published on 3 March 2023. The primary judge identified the question for the court as being whether the appellant's contact with the children should cease completely (as submitted by the respondent) or whether contact should continue with indefinite supervision (as submitted by the independent children's lawyer), notwithstanding that the respondent initially sought that the children spend time with him on a regular basis.[94] In answering this question, the primary judge identified that the paramount consideration is the best interests of the child, which are to be determined by reference to the primary and additional considerations in s 66C of the Family Court Act 1997 (WA).[95]
[94] Primary decision [40], [43].
[95] Primary decision [685] ‑ [687].
The judge ultimately found that it was in the best interests of the children that all forms of contact with the appellant cease and that the children were at an unacceptable risk of psychological and emotional harm. His Honour found that anything other than an order that the respondent have sole parental responsibility would be unworkable and counterproductive, given that a requirement for the parties to communicate would be a 'recipe for disaster'.[96]
[96] Primary decision [750] ‑ [753].
The primary judge gave precedence to the primary consideration of the need to protect the children from physical or psychological harm,[97] as mandated by s 66C(3A) of the Family Court Act.[98] Having regard to the evidence of Dr Wojnarowska, Ms Paganoni and Dr Watts (who prepared a report relating to the respondent's gambling), the judge found that the appellant's conduct placed the children at high risk of psychological harm and exposure to physical violence perpetuated by the appellant. His Honour considered it unlikely that the appellant's conduct would improve in the absence of her accepting responsibility and seeking appropriate help.[99] The primary judge rejected the appellant's allegations as to her exposure to physical violence, finding that it was 'simply part of her "narrative" that did not withstand scrutiny'.[100] His Honour detailed particular concerns he had regarding the appellant's behaviour, including her abuse and denigration of the respondent to the children in breach of court orders,[101] her speaking to the children about future care arrangements changing during supervised visits[102] and her contact with the independent children's lawyer, experts and the children's school and day care.[103]
[97] See Family Court Act s 66C(2)(b).
[98] Primary decision [692] ‑ [694].
[99] Primary decision [696] ‑ [697], [721].
[100] Primary decision [699].
[101] Primary decision [701], [704] ‑ [706].
[102] Primary decision [707] ‑ [714].
[103] Primary decision [715] ‑ [720].
With regard to the primary consideration of the benefit to the child of having a meaningful relationship with both parents,[104] his Honour found that the relationship was meaningful but not optimal. The judge commented that there was some benefit to the children in maintaining the relationship but observed that the maintenance of a relationship 'soured with psychological harm and exposure to violence weighs heavily'.[105]
[104] See Family Court Act s 66C(2)(a).
[105] Primary decision [695].
The primary judge made the following findings in relation to the relevant 'additional considerations' under s 66C(3):
1.The children were too young to express a wish that could attract significant weight.[106]
2.The children had 'a positive and engaged relationship' with the respondent and W and had a relationship with their maternal grandmother and the appellant's partner. However, the maternal grandfather refused to spend time with the children during supervised visits.[107]
3.The respondent had the capacity to physically provide for the needs of the children, including their emotional and intellectual needs, notwithstanding A's educational shortcomings. The judge noted his 'grave concern' for the appellant's capacity to provide for the children's emotional and psychological needs.[108]
4.With regard to the 'effect of any change to the orders', the appellant could not be trusted to spend unsupervised time with the children and the two options for the court were indefinite supervision or no contact. In this regard, the primary judge expressed doubt at the prospect of the appellant's conduct changing if the court were to make orders for indefinite supervision and reservations about the reporting and effect of her conduct. His Honour observed that orders prohibiting contact between a parent and child were orders of a last resort but was satisfied that the court had taken every reasonable step by way of risk amelioration. Notwithstanding these steps, the appellant had not demonstrated that she had taken any meaningful or effective steps towards acknowledging or overcoming her behaviours.[109]
[106] Primary decision [725].
[107] Primary decision [726] ‑ [729].
[108] Primary decision [733] ‑ [736].
[109] Primary decision [738] ‑ [745].
The judge also had regard to the appellant's failure to abide by directions/orders of the court in relation to non‑denigration and to the respondent's evidence concerning the stress A experienced preceding and following contact with the appellant.[110]
[110] Primary decision [748] ‑ [749].
In relation to the application for financial orders, the primary judge found that the circumstances supported a finding that it was just and equitable for the court to make an order varying the parties' property interests and that the contributions between the parties should be assessed as equal.[111] His Honour made an adjustment of 10% in favour of the respondent.[112]
[111] Primary decision [788], [796].
[112] Primary decision [818].
Events since the making of the primary orders
The evidence filed on the stay applications discloses the following relevant events which have occurred since the primary judge made orders disposing of the primary proceedings.
The children have not seen the appellant since 18 February 2023 and have not spoken to the appellant since 26 February 2023.[113]
[113] Respondent's affidavit sworn 15 July 2023, par 12.
On 10 March 2023, the parties withdrew the funds due to them from the joint bank account pursuant to the orders made on 8 March 2023.[114]
[114] Respondent's affidavit sworn 15 July 2023, pars 18 - 20.
On 30 March 2023, acting pursuant to orders made by the court on 3 March 2023, Ms Paganoni informed the children about the orders for them to remain in the respondent's full‑time care and have no contact with the appellant.[115]
[115] Annexure A to the respondent's affidavit sworn 15 July 2023.
On 15 May 2023, the independent children's lawyer provided to the appellant information regarding Ms Paganoni's reported contact with the principal of the children's school as to their behaviour at school. In general terms, the children appeared to be emotionally and behaviourally settled at school at that time.[116]
[116] Annexure C to the respondent's affidavit sworn 15 July 2023.
In her affidavit sworn 23 May 2023, the appellant deposed that she was continuing to engage with her clinical psychologist, Ms Della Commons, and sees a counsellor (Ella Allen) from 'Mindsoul' fortnightly. She also continues to engage in regular appointments with Women's Health and Family Services.[117]
[117] Appellant's affidavit sworn 23 May 2023, pars 11, 14, 27.
In par 11 of his affidavit sworn on 15 July 2023, the respondent deposed:
[A] and [B] are both progressing well, and are happy and healthy. Neither boy has shown signs of distress, since contact with [the appellant] has ceased. I have seen an improvement in [A] regulating his emotions and becoming less reactive to situations. He is becoming more confident in himself. They are both settled.
The appeal to this court
The appellant appeals against the primary orders on the following grounds contained in her appellant's case filed on 9 June 2023:
Ground 1.
The trial judge erred in law in ordering, on 1 September 2022 that the case proceed on an undefended basis, and in subsequently refusing the appellant's application to be reinstated to the primary proceedings from 1 September 2022 was not reasonably justified in the circumstances.
Ground 2.
By making the orders challenged by ground 1, the trial judge erred in law in failing to accord the appellant procedural fairness, by depriving her of the reasonable opportunity to challenge evidence relied upon by the respondent, to adduce evidence in support of her own case and to make submissions.
Ground 3
The trial judge erred in law in failing to recuse himself from the hearing because the manner in which the trial judged conducted the case, contrary to s 202B of the Family Law Act 1997 (WA), gave rise to a reasonable apprehension of bias on the part of the judge.
Ground 4.
The trial judge erred in law with regards to exhibit 7, a USB containing video and audio recordings, when the material should have been excluded on the basis that it was obtained in contravention of the Surveillance Devices Act 1998 (WA).
The trial judge erred in law with regards to exhibit 7 being admitted in violation of the rules of evidence and was not formally submitted into the court. The Evidence Act 1995(Cth). The respondent father had not disclosed the existence of the recordings under Rule 13.14 of the Family Law Rules. The USB was incorrectly listed as 'USB audio of telephone conversation' and attached to an unsealed court affidavit that had never formally be admitted into evidence in the Family Court when it was forwarded on initially by the first Independent Children's Lawyer. There is no order admitting this into evidence.
Ground 5
The trial judge erred in law and fact in finding that it was in the best interests of the children that all forms of contact with the appellant cease forthwith, when the conclusions was not reasonably open on the evidence or the judge's findings, and in making orders 5 and 6 of the orders of 3 March 2023, which in effect restrained the appellant from having any contact with her children.
Ground 6
The financial orders made by the trial judge on 8 March 2023 should be set aside by reason of a miscarriage of justice arising from the failure by the respondent to give the disclosure of his financial affairs which was required by law.
The appellant's applications in an appeal
Pursuant to a registrar's notice to attend dated 13 June 2023, at the hearing on 7 August 2023 the court considered the following four applications in an appeal made by the appellant:
1.By application in an appeal filed on 24 March 2023, the appellant seeks a stay of the financial orders made on 8 March 2023 pending the determination of the appeal.
2.By application in an appeal filed on 27 March 2023, the appellant seeks a stay of the parenting orders made by the primary judge on 3 March 2023.
3.By application in an appeal filed on 6 April 2023, the appellant also seeks a stay of the parenting orders made by the primary judge on 3 March 2023. This application is focussed on the orders for the respondent to have liberty to obtain passports for the children and travel outside Australia with them.
4.By application in an appeal filed on 8 June 2023, the appellant seeks an order for '[e]xhibit 69 [in the primary proceedings] to be struck off as evidence (dismissed)'.
General principles in relation to stay applications
This court has the power under r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) to grant an interim order in the form of a stay of execution pending the hearing of the appeal if there are 'special circumstances' that justify doing so. For that purpose, ordinarily the applicant will need to show, among other things, that a stay order is reasonably necessary to prevent the appeal being rendered nugatory, or that refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.
In Tradesman Technologies Pty Ltd v Ameduri,[118] Pullin JA summarised the general principles governing the grant of a stay:
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[118] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22], adopting Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
In the context of an appeal being rendered nugatory, it has been said that special circumstances will exist where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed.[119]
[119] Commissioner of Taxation (Cth) v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220, 222 ‑ 223.
While those principles provide guidance in the exercise of the discretion, they are not inflexible or exhaustive.[120] In a case involving the custody and care of a child, it is appropriate for the court to also have regard to the best interests of the child in the exercise of its discretion to grant a stay. In considering the grant or refusal of a stay, the court appropriately has regard to the best interests of the child, and any harm to the child which may follow from the grant or refusal, in assessing the balance of convenience.[121]
[120] Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118 [15].
[121] T v S [No 2] [2015] WASCA 235 [12].
There is a division of views in the authorities as to whether the best interests of the child are the paramount consideration in exercising the court's discretion to grant or refuse a stay. On one view, an order for a stay of parenting orders pending an appeal is itself a parenting order as it suspends an existing parenting order.[122] The result is that in determining whether to allow a stay, the court must regard the best interests of the child as the paramount consideration under s 66A of the Family Court Act.[123] However, the view has also been taken that a stay is not an order made under the Family Law Act 1975 (Cth) so that a stay cannot be described as a parenting order under the Act.[124] It is unnecessary for this court to resolve this division of opinion in the present case, which can be dealt with on the basis that the welfare of the children is at least a significant consideration even if it is not the paramount consideration. In our view, the slightly different ways of framing the test would not produce a different outcome in the circumstances of the present case.
[122] Section 84(1)(b) of the Family Court Act.
[123] K v B [2006] WASCA 100 [21] citing Re Evelyn [No 3] (1998) 23 Fam LR 73 [68]; Clemett v Clemett(1980) 50 FLR 248, 249 ‑ 250; Langley v Tarelli [No 2] [2020] FamCAFC 126 [25] - [28].
[124] EJK v TSL [2006] FamCA 730; (2006) 202 FLR 240 [74]; Stephens v Taylor [2008] FamCAFC 74 [11] - [12]; Aldridge v Keaton [2009] FamCAFC 106 [18].
The respondent contends that the effect of the grant of a stay of the parenting orders would be to revive the parenting orders that were in place prior to the orders made on 3 March 2023. There is some authority under the Family Law Act which tends to support that proposition, although the reasoning is limited.[125]
[125] See Anderson v Senior [2013] FamCAFC 152; (2013) 279 FLR 399 [25]; Dent v Bishop [2017] FamCA 81 [7].
The respondent, while accepting that this court has jurisdiction to grant a stay, asserts that the court does not have jurisdiction to make a parenting order other than a stay which would revive previous orders. Counsel for the respondent does not cite any authority for that proposition, or address authorities which hold that this court generally has implicit power to make orders, at least against the parties to the proceeding against whom final relief might be granted, as are needed to ensure the effective exercise of its appellate jurisdiction.[126] For present purposes, it is unnecessary to determine how that general principle might apply in relation to appeals against parenting orders under the Family Court Act.
[126] See Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35 [48] and cases there cited.
Stay of orders preventing the appellant's contact with the children
We were not persuaded that there are any proper grounds for staying the orders providing for the children to reside with the respondent and providing for him to have sole parental responsibility in relation to them.
We note the submission by the appellant as to a reference she has recently located in a general practitioner's note of a 2014 consultation with the respondent, which refers to a history of unspecified substance abuse.[127] We were not satisfied that the appellant's description of this note (which is not attached to her affidavit) provides any basis for varying the orders for parental responsibility. The purported consultation note is over 9 years old and is not specific as to the nature or timing of the historical substance abuse to which it refers. The appellant does not give evidence in the appeal, or point to evidence at trial, of any observations she made of substance abuse by the respondent in their relationship between 2003 and 2018.
[127] Appellant's affidavit sworn 31 July 2023, par 3.
We turn to consider the appellant's application for a stay of the parenting orders which prohibit her from having any contact with her children.
This question falls to be considered in a context where the appellant's case and respondent's answer have now been filed and the court is able to list the appeal for hearing on 8 and 9 November 2023. That hearing will be three months from the hearing of the stay applications, in a context where the appellant has not had any contact with the children since 26 February 2023.
Whether the appeal will be rendered nugatory if a stay is not granted
The utility of the appeal will not be lost if a stay is not granted. The absence of a stay would not prevent the court from setting aside the parenting orders if the appeal against those orders is ultimately allowed, with the result that the appellant may be able to have contact with the children at that time. That is, a period of no contact between the appellant and the children would not render the appeal pointless. The potential for the appeal to be rendered nugatory rather arises from the risk that a period of complete separation until the hearing and determination of the appeal will have an adverse impact on the children's relationship with their mother, which orders made after the appeal being allowed (if that occurs) cannot repair. We are satisfied that there is a risk that the appeal may be rendered nugatory in that limited sense if a stay is not granted pending the determination of the appeal.
Whether the appeal has reasonable prospects of succeeding
We are also satisfied that at least grounds 1 ‑ 3 have reasonable prospects of success in the relevant sense.
If one or more of those grounds 1, 2 or 3 were made out, the usual result would be an order by this court setting aside the parenting orders and remitting the matter for retrial.
The above observations in relation to the appellant's grounds of appeal concern only whether the grounds are arguable and not whether any of these grounds will necessarily succeed at the hearing of the appeal. Any views we have about the grounds at this stage are necessarily provisional views reached before hearing full argument at the hearing of the appeal. However, at this preliminary stage, for reasons discussed during the argument of the stay applications, grounds 1 - 3 appear to raise real issues for the court's consideration.
Balance of convenience and best interests of the children
We then turn to consider the balance of convenience and the best interests of the children.
In that regard, the risk of the continuation of the parenting orders permanently damaging the children's relationship with their mother is limited by the relatively short further period of three months until the appeal can be heard. In making that observation, we recognise that the court will not necessarily be in a position to the determine the appeal at the hearing and it is likely to prove necessary to reserve judgment in the matter. However, at the hearing of the appeal it will be open for the court to reconsider the position in relation to a stay of the primary orders after having had the benefit of full argument which it receives at that time.
We also note that the children are not so young as to make it likely that they will lose memories of their mother over the period of separation required by the parenting orders if the appeal is ultimately successful. The children have already been separated from the appellant since February 2023.
There is a countervailing risk to the wellbeing of the children in granting a stay if the appeal is ultimately dismissed. The children have been informed of orders which provide that they will not have contact with their mother. If a stay were granted, they would be told that contact will resume and experience that contact with their mother. However, if the appeal were ultimately dismissed then, a few months later, the children would need to again be told that they cannot see their mother and experience the renewed cessation of contact with her. That sequence of events appears to us to be likely to introduce disruption and uncertainty into the children's lives, which on the current evidence before us appear to be settled.
In making the above observations as to the risks to the wellbeing of the children associated with the grant or refusal of a stay, we are necessarily making our own assessment without the benefit of expert evidence. There is no evidence before us as to any attachment issues which are or may be suffered by the children that may hinder the reinstatement of a meaningful relationship if the appeal is ultimately successful. Nor is there any expert evidence before us as to the any potentially harmful effects of restoring and then terminating contact between the appellant and the children if the appeal is ultimately unsuccessful. However, the court must make its best assessment of where the best interests of the children lie on the material that the parties have chosen to place before it.
We also note a further consideration which counts against the grant of a stay. Video evidence before the primary court referred to at [54] and [69] above shows the appellant to be making denigrating comments about the respondent and W, of a kind which the expert evidence indicated carried both short‑term and long‑terms risks of psychological harm to the children. Those comments were made when the appellant knew that she was being recorded, and despite injunctions preventing her from making such comments. This evidence indicates a risk that the appellant is so fixated on her grievances against the respondent that she is incapable of consistently refraining from having discussions with the children in which she does not make derogatory remarks about the respondent.
The expert evidence at trial indicated the damaging effects on the children that such comments about their primary carers might have (irrespective of the validity of the appellant's grievances). The risk of such comments being repeated arises if a stay is granted. It might be said that the significance of this consideration is limited by the provision for supervision of contact under the previous orders and the capacity for Relationships Australia (in the case of face‑to‑face contact) or the respondent (in the case of video contact) to terminate the contact if inappropriate comments are made to the children. However, if the appellant were to repeat her behaviour shown in the Talking Parent recordings after a stay was granted, then there would be a real prospect that this court may need to discharge the stay before the determination of the appeal. That again raises the risk associated with changing advice and access arrangements introducing uncertainty, confusion and instability into the children's lives.
As noted above at [83], the appellant appears to continue to be involved in counselling and so is taking steps to attempt to address the issues which have emerged in relation to her engagement with the children. She is to be commended for adopting that approach. However, at this stage the evidence does not demonstrate that the ongoing counselling has been effective in significantly reducing the risk of the appellant making harmful disparaging comments to the children about the respondent and W. The evidence available at this stage rather suggests that the risk remains.
Disposition
On balance, we were of the view that the interests of the children are best served by maintaining the status quo which has prevailed since February 2023 at least until the hearing of this appeal in three months' time. We were therefore not prepared to grant a stay of the parenting orders preventing the appellant from contacting the children at this time.
However, we decided not to dismiss the application for a stay of those orders at this stage. As noted, it may be appropriate for the court at the hearing of the appeal to reappraise the position when it is better able to assess the merits of the grounds of appeal. To preserve that option, we ordered that the appellant's application in an appeal filed on 27 March 2023 be referred to the hearing of the appeal.
Stay of orders relating to passports and travel
We were not persuaded that the appeal will be rendered nugatory in any sense if the parenting orders enabling the respondent to obtain passports for the children and travel with them are not stayed pending the determination of the appeal. There is nothing before the court suggesting that the respondent intends to permanently remove the children from Australia to a country where parenting orders made by this court could not be enforced. The evidence before us does not provide any proper basis for staying those orders.
In her supporting affidavit, the appellant refers to s 65Y, s 65YA and s 65Z of the Family Law Act. Those sections create offences in relation to the removal from Australia of children who are the subject of a parenting order under that Act or pending proceedings for a parenting order under that Act. Sections 107 and 108 of the Family Court Act are equivalent provisions to s 65Y and s 65Z of the Family Law Act. However, under these provisions, an offence is not committed where the child is removed in accordance with the court's order (so that travel in accordance with par 12 of the parenting orders would not constitute an offence).[128] The sections do not have the significance that the appellant seeks to attach to them in relation to the grant of a stay.
[128] See s 65YA(1)(b)(ii) and s 65Z(1)(c)(ii) of the Family Law Act; s 107(2)(b) and s 108(2)(b) of the Family Court Act.
For these reasons, we dismissed the appellant's application in an appeal filed on 6 April 2023.
Stay of financial orders
We were also not satisfied that the appeal against the financial orders will be rendered nugatory if a stay is not granted pending the determination of the appeal. The orders for payment of funds out of the joint bank account have been implemented. The only current future operation of the orders concerns payments from the parties' superannuation funds. At the hearing of the appeal, the respondent, through his counsel, provided the court with an undertaking not to 'withdraw down on/against superannuation until the determination of the appeal'. This enforceable undertaking was sufficient to address the risk that the appeal against the financial orders might be rendered nugatory if a stay were not granted. For these reasons, we dismissed the appellant's application in an appeal filed on 23 March 2023.
Application in relation to exhibit 69
There is no basis for this court to make an order 'striking out' an exhibit in the primary proceedings. It is open to the appellant to appeal on the ground that evidence should not have been admitted in the primary proceedings, as she has done in ground 4 of her appeal. But it is not for this court to re‑write the history of the primary proceedings by removing evidence that was (rightly or wrongly) admitted.
We also note that the basis on which exhibit 69 was admitted appears to be to record the material that was provided to the expert witnesses, and on which their opinion evidence was partly based, rather than as direct evidence of the appellant's conduct in court (which the primary judge was able to observe). The recordings were properly admissible for that purpose.
For these reasons, we dismissed the appellant's application in an appeal filed on 8 June 2023.
Orders
For the above reasons, at the conclusion of the hearing of the applications in an appeal on 7 August 2023 we made the orders set out at [1] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
15 AUGUST 2023
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