Pachis & Turnbull
[2023] FedCFamC1A 110
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pachis & Turnbull [2023] FedCFamC1A 110
Appeal from: Turnbull & Pachis [2023] FedCFamC2F 253 Appeal number(s): NAA 62 of 2023 File number(s): BRC 15185 of 2022 Judgment of: TREE J Date of judgment: 10 July 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders providing for no contact between herself and the children – Whether the primary judge failed to afford the mother procedural fairness – Whether the primary judge demonstrated bias – Adequacy of reasons – Where most of the purported grounds are not proper grounds of appeal and lack particularity – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered in favour of the Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) ss 69ZN, 69ZQ
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67, 69
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Naparus & Frankham (2020) FLC 93–943; [2020] FamCAFC 32
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 41 Date of hearing: 4 July 2023 Place: Cairns (via video link) The Appellant: Self-represented litigant The Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Ms Tree Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NAA 62 of 2023
BRC 15185 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PACHIS
Appellant
AND: MR TURNBULL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
TREE J
DATE OF ORDER:
10 July 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the Independent Children’s Lawyer’s costs in the sum of $4,945.57 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pachis & Turnbull has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Ms Pachis (“the mother”) appeals from final parenting orders made by the primary judge on 28 February 2023 which provided for the parties’ two children to live with Mr Turnbull (“the father”) and spend no time and have no communication with the mother.
The father and the Independent Children’s Lawyer (“ICL”) both oppose the appeal.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The mother was born in 1991 and is presently 32 years of age. The father was born in 1986 and is presently 36 years of age. They commenced cohabitation in 2012 and finally separated in 2015.
Their two children were born in April 2014 and September 2015, making them presently 9 and 7 years of age.
Post separation the parties have been in a protracted dispute about the children.
After six days of trial, on 23 September 2022, final parenting orders were made by a Federal Circuit and Family Court of Australia (Division 2) judge (“the first judge”) pursuant to which the father had sole parental responsibility for the children, who would primarily live with him, but spend regular unsupervised time with the mother.
However those orders did not work, as the mother almost immediately started withholding the children from the father. That saw him seek a recovery order, together with a variation to the final parenting orders to the effect that the children would spend no time with the mother.
In due course a Senior Judicial Registrar made a recovery order, and varied the parenting orders such that, on an interim basis, the children spent supervised time with the mother at a contact centre.
The matter then came into the docket of the primary judge, who on 13 February 2023 determined that there was a sufficient change of circumstances to warrant re-litigation notwithstanding that a trial had been held only some months previously.
Whilst I shall need to address what occurred on 13 February 2023 in more detail shortly, suffice to say that on that date the matter was listed for final hearing before the primary judge on 28 February 2023, at the conclusion of which, for reasons delivered ex tempore, the primary judge made the orders from which this appeal is brought.
THE APPEAL
Before considering the grounds, it should be noted that this is an appeal against the exercise of discretion, and hence falls to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House v The King”). That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
Therefore an appeal is not an opportunity for the appellant to re-run their case in an attempt to convince the appeal court that, absent appealable error of the kind identified in House v The King, it should nonetheless come to a different conclusion. However in large part, that appears to be what the mother is trying to do in this appeal.
Although initially she agitated 40 grounds of appeal, after an Appeal Judicial Registrar struck out 16 grounds at a procedural hearing, there remained 24 grounds. Whilst no amendment of the grounds was formally undertaken, the mother structured her Summary of Argument by, in effect, renumbering the remaining grounds, and I shall adopt that course in these reasons as well.
However at the outset, it should be stated that a court is entitled to be circumspect about the merit of all the grounds of appeal, when they are so voluminous and assert many different errors in respect of a relatively short first instance judgment such as this one (Sieger & Department of Communities and Justice [2020] FamCAFC 172 at [20]–[22]).
Indeed most of the mother’s purported grounds are not proper grounds of appeal at all; worse, her Summary of Argument is mostly unintelligible, and often does not address, much less illuminate, the challenge made by the particular ground. The mother’s oral submissions did not assist the resolution of the appeal in any way. Hence since the appeal fails, the absence of any question of general principle justifies short reasons (s 36(2) of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“FCFCOA Act”)).
I will deal with those grounds which contend a want of procedural fairness or bias at the outset (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
Grounds 1, 10, 13, 17 and 18
It is convenient to deal with these grounds collectively, as they all appear to deal with basically the same contention. They provide:
1) No procedural fairness
10) Key elements of the case were not heard
13) Submission only case / trial
E)The [mother’s] submission put before the new primary judge was not used
17) Half day hearing / rushed outcome
18) No cross-examinations
(As per the original)
Most of the mother’s Summary of Argument directed to these grounds was irrelevant, however there is a consistent theme in them to the effect that, by proceeding as his Honour did, the primary judge failed to afford the mother a fair hearing.
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it.
There was a degree of curiosity in the way the “trial” came to pass.
On 13 February 2023 the primary judge, having concluded that there was a sufficient change to warrant re-litigation of the parenting proceedings, determined to “deal with the reopening by way of submission” (Transcript 13 February 2023, p.20 line 7). There would be “[n]o oral evidence” but the parties could “supplement” the material which was before the first judge with the new material of the father, the mother, and material produced pursuant to subpoena from the supervising contact centre (Transcript 13 February 2023, p.21 lines 11-22). Seemingly this course was adopted because his Honour was of the view that “I have got to figuratively, you know, lance the boil very quickly” (Transcript 13 February 2023, p.22 lines 24-25).
However the mother expressed no difficulty with that proposed course, saying “I think it’s just the submissions and what evidence we want you to refer to” (Transcript 13 February 2023, p.22 lines 34-35). Generally a party, whether legally represented or not, is bound by their conduct in the litigation (Metwally v University of Wollongong (1985) 60 ALR 68).
There is no absolute right to cross-examination (Naparus & Frankham (2020) FLC 93–943 at [17]–[20]) and here the nature of the mother’s new allegations raised in her material (recited by the primary judge at [34]) suggested that testing them by cross-examination of the father would be wasteful.
Particularly it must not be overlooked that by February 2023, a lengthy trial had only recently been concluded, at which extensive cross-examination had occurred. Against that background, there could be no justification for revisiting that controversy (bearing in mind no appeal was brought from the ensuing orders). Moreover, the Court is obliged to actively direct, control and manage parenting proceedings including “decid[ing] which of the issues in the proceedings require full investigation and hearing” (ss 69ZN(4) and 69ZQ(1)(a) of the Family Law Act 1975 (Cth)), and in conformity with the overarching purpose articulated in s 67 of the FCFCOA Act, the Courts under that Act have the power to direct proceedings, in ways of which those listed in s 69(2) are only examples.
Therefore although a little unusual, the course charted by the primary judge did not involve a breach of procedural fairness, as plainly the parties not only had the opportunity to put on material and make submissions, but actually did so.
These grounds all fail.
Ground 4
This ground appears to assert bias by the primary judge, as it claims:
4) Orders were uploaded at 9:30 am – one hour before proceedings commenced
(As per the original)
There is simply no factual material to support this claim, which if true, might raise serious issues. However since the mother seems to recklessly advance patently outrageous allegations (at [77]), this mere contention, on its own, goes nowhere.
Ground 4 fails.
Grounds 8 and 9
These grounds provide:
8) Evidence provided in my affidavit material was not discussed
9) Insufficient reasoning
(As per the original)
I will discuss these grounds together because (perhaps) they overlap, in that the alleged want of reasoning might extend to the contended failure to engage with the mother’s material.
The obligation to provide reasons is well established. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
Here the primary judge’s reasoning is clear. The mother was never going to stop using her time with the children to undermine the father (at [20] and [69]), and the previous orders permitting unsupervised time had failed (at [22]), as plainly also had the interim orders for supervised time (at [38]–[49]). “No-time” orders were the only remaining option (at [81]–[82]).
Further, the primary judge did in fact deal with the mother’s allegations (at [34] and [77]–[80]), but in a way which, far from favouring her, cemented the outcome against her. That course was perfectly open to the primary judge.
These grounds are without merit.
Grounds 2, 3, 5, 6, 7, 11, 12, 14, 15, 16, 19, 20, 21, 22, 23 and 24
These ground provide:
2) No expiration of orders
3) Ineffective assistance of counsel
5) Rigorous breaches during the proceeding
6) Conjecture – incomplete evidence was produced
7) Parallel proceedings with entire different outcome
11) Unproven theories were used
12) No admissible actual evidence was used
14) Inaccurate and incomplete evidence was provided to the judge
15) I was instructed to send this particular case to appeals for review
16) Improper exclusion of evidence
19) Insufficient evidence to support the final outcome
20) Contempt of court was admitted during the proceeding
21) A clear error of law by the judge
22) A ruling that wasn’t supported by the evidence presented during the case
23)Improper admission of evidence that affected the case and impacted the judgment
24)Improper instructions that prejudiced the case
(As per the original)
Absent any particularity whatsoever, not only are none of these proper grounds of appeal, but no intelligible argument in support of whatever challenges were intended to be made under them can be gleaned from the mother’s Summary of Argument, or her oral submissions.
These grounds all fail.
OUTCOME
No ground of appeal succeeds, and hence the appeal must be dismissed.
COSTS
In the event that the appeal failed, the ICL sought an order for costs in the sum of $4,945.57. The appeal was wholly devoid of merit and should never have been brought. The ICL’s involvement was therefore a waste of public funds caused by the mother, as to whose financial circumstances there is no evidence. Weighing those factors supports an order for costs. The sum claimed is modest, and should be payable within 28 days.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 10 July 2023
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