PAINTAL & PAINTAL
[2020] FamCAFC 123
•22 May 2020
FAMILY COURT OF AUSTRALIA
| PAINTAL & PAINTAL | [2020] FamCAFC 123 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from an order made by the primary judge dismissing an interim parenting application – Where the grounds of appeal contend issues of procedural fairness, errors of fact and a failure by the primary judge to take into account material considerations – Where some of the grounds of appeal are considered as a collective attack on the Independent Children’s Lawyer – Where the mother and the Independent Children’s Lawyer oppose the appeal – Where no procedural fairness – Where the primary judge carefully abstained from making any factual findings on controversial evidence – Where no errors of fact – Where the material considerations allegedly not taken into account by the primary judge were not posited by the father to the primary judge as influential considerations – Where the Independent Children’s Lawyer was obliged to form her own view which incidentally coincided with the mother’s view – Where the primary judge’s reasons are adequate – Where there is no merit in the appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Where the mother and the Independent Children’s Lawyer sought costs orders against the father – Where party/party costs are sought – Where the father’s financial circumstances are considered – Where the father has not demonstrated that he will suffer hardship if ordered to pay costs – Where the father is ordered to pay fixed costs to the mother and the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) Pt VII, ss 68LA, 94(2A), 117 Family Law Rules 2004 (Cth) r 19.18(1)(a) |
| Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28 Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mallory & Mallory [2020] FamCAFC 62 Paintal & Paintal [2020] FamCAFC 17 Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207 |
| APPELLANT: | Mr Paintal |
| RESPONDENT: | Ms Paintal |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
| FILE NUMBER: | CAC | 273 | of | 2014 |
| APPEAL NUMBER: | EAA | 84 | of | 2019 |
| DATE DELIVERED: | 22 May 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Kent, Austin & Tree JJ |
| HEARING DATE: | 22 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 624 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Women's Legal Centre (ACT & Region) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid ACT |
Orders made 22 May 2020
(1)The appeal be dismissed.
(2)The appellant father pay the respondent mother’s costs fixed in the amount of $7,000 within two months from the date of these Orders.
(3)The appellant father pay the Independent Children’s Lawyer’s costs fixed in the amount of $6,994.37 within two months of the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paintal & Paintal has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 84 of 2019
File Number: CAC 273 of 2014
| Mr Paintal |
Appellant
And
| Ms Paintal |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Austin J
By way of an Amended Notice of Appeal filed on 18 September 2019, the father appeals from a single order made by a judge of the Family Court of Australia on 5 September 2019 dismissing his interim application filed on 22 July 2019.
The Application in a Case filed by the father sought interim orders in respect of four separate issues, namely:
a)an order directed to and compelling the “Australian Passport Office” to issue a passport for the parties’ child on the father’s authorisation;
b)orders enabling the father to take the child to India for three weeks;
c)an order giving the father sole parental responsibility in respect of decisions affecting the child’s education; and
d)an order listing the proceedings for expedited trial.
The first issue fell away because the mother agreed to the parties’ joint procurement of a passport for the child, so long as the passport was held by the Registrar of the Court pending further order about it. The primary judge noted the parties’ agreement and made interim orders to achieve that outcome in August 2019.
Both the mother and the Independent Children’s Lawyer (“the ICL”) opposed the remainder of the father’s application before the primary judge and they both now oppose the appeal.
In my view, the appeal should be dismissed and, as s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”) permits, short form reasons should be given for the dismissal because the appeal does not raise any question of general principle. In addition, as pleaded, the grounds of appeal amount to six pages of argumentative narrative and bear little resemblance to the available grounds of appeal from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504-505).
Brief background
The parties finally separated shortly before the father commenced proceedings in May 2017.
Their only child was then aged five years, but she is now eight.
Both parties live in Australia but have family connections in India. From the time the proceedings were commenced, both parties have been suspicious of the other’s intention to take the child to India and not return her to Australia.
On the first return date before the Court in May 2017, interim orders were made restraining the parties’ removal of the child from Australia. Similar injunctions were later made in August 2017, November 2018 and August 2019.
Since the parties’ separation, various suites of interim orders have provided for the child to live with the mother and spend time with the father. They have equal shared parental responsibility for the child.
The primary judge heard the father’s interim application on 3 September 2019 and dismissed it two days later with published reasons.
The appeal
The order which the father sought from the primary judge to expedite the trial of the proceedings was procedural in nature. The order dismissing his application for that particular order is not a decree from which an appeal competently lies (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Tallant & Kelsey (2016) FLC 93-742).
Even if the appeal from that aspect of the dismissal order was competent, as an interlocutory order which was not made under Part VII of the Act, it would require the grant of leave to appeal, which should not be given. The father advanced no persuasive reason, either to the primary judge or in the appeal, as to why the parties’ dispute should take priority over other litigants’ cases. The only evidence the father relevantly adduced before the primary judge on this point was in these terms:
…It is in the best interest of [the child], the court to decide on both parenting and property settlement between both parties immediately and let the father to get out of the debt [sic].
… [The father] is urging the court to give him the opportunity to start his life from zero sooner than later.
(Father’s affidavit filed 22 July 2019, paragraphs 83–84)
In any event, although the father’s application for expedition was dismissed by the primary judge in September 2019, the Chief Justice has since made another procedural order in December 2019 directing that the proceedings be set down for trial over eight days at the first available opportunity. The proceedings have therefore already taken their place in the trial queue.
The remainder of these reasons consequently only address the two residual issues in the father’s application: his entitlement to take the child to India and the allocation of parental responsibility for decisions related to the child’s education.
One last procedural matter should be addressed. The contents of the Appeal Book were settled by procedural orders made by the Appeals Registrar on 6 November 2019. Then, on 20 December 2019, the father filed an Application in an Appeal seeking leave to review the Appeals Registrar’s decision about the contents of the Appeal Book out of time. On 29 January 2020, Ryan J made orders giving the father leave to file a Contested Appeal Book containing two designated documents and dealing with costs, but otherwise dismissed the father’s interlocutory application (Paintal & Paintal [2020] FamCAFC 17). As the ICL submitted in her Summary of Argument, the contents of the Contested Appeal Book do not advance the father’s cause and do not help determine the appeal.
Ground 5
This ground of appeal asserted the primary judge failed to afford the father procedural fairness. The particularised grounds of the alleged unfairness were that the primary judge:
a)“pre-planned to accept the ICL’s biased submissions”; and
b)made procedural orders in August 2019 which, first, gave the mother more time to file material in response to the father’s application, and secondly, failed to compel the ICL to file and serve any material before the interim hearing.
The father seemed not to appreciate the incongruity of his contentions. The ICL did not file any evidence separately from the parties and merely made oral submissions at the interim hearing, in which event it was quite impossible for the primary judge to “pre-plan” acceptance of the ICL’s submissions. The ICL’s submissions were based entirely upon evidence adduced by the parties, which evidence was well known to the father. The primary judge only heard the ICL’s submissions at the same time as the parties during the hearing.
The mother filed her response to the father’s interim application on 5 August 2019. At a procedural court event a week later, on 12 August 2019, the primary judge made orders giving the mother 14 days to file and serve a further affidavit and also giving the father the opportunity to thereafter file and serve an affidavit in reply. The parties availed of those orders. All of their affidavit material was filed and served by 30 August 2019, four days in advance of the interim hearing. There was no procedural unfairness.
Ground 4
This ground of appeal asserted the primary judge “erred on the facts” in relation to the decision refusing him sole parental responsibility in respect of the child’s education, which frustrated his desire to enrol the child at a private school.
Neither the ground of appeal nor the father’s Summary of Argument identified any particular error of fact. That is because, conscious that the parties’ evidence was untested in cross-examination, the primary judge carefully abstained from making any factual finding on controversial evidence.
His Honour simply observed that there was “a dearth of evidence” to suggest the child’s enrolment in a private school would be in her best interests (at [15]) and that there was a “risk” her enrolment in a private school could not be maintained by the father due to his financial circumstances, since he intended to seek a reduction of his child support assessment by up to 30 per cent so he could afford the private school fees, when his assessment is already calculated on an annual income of only $26,045 and he already has significant child support arrears and mounting tax debt (at [16]–[17]). Those observations were entirely consistent with the father’s evidence. Notwithstanding his professed confidence that he could afford the school fees, the father admitted in his affidavit to having “ongoing financial difficulties”.
Ground 2
In effect, the first part of this ground alleged the primary judge erred by accepting as being true an unproven allegation made by the mother, in so far as it influenced the decision to refuse his application to take the child to India.
When discussing the parties’ evidence, which underpinned their conflict over whether the father could take the child to India, the primary judge said (at [9]):
…The Mother alleges and the Father denies that he holds property in India…
Self-evidently, the statement was nothing more than a recitation of one aspect of the parties’ conflicting evidence. No finding was made to resolve the conflict.
In the appeal, the father contended that aspect of the mother’s evidence was a “deliberate lie” for which she advanced “no supporting evidence”. It is certainly true the wife adduced no evidence to corroborate her allegation and it might also be true that her allegation was either deliberately false or mistaken, but it makes no difference. The primary judge did not make any finding that the father did own property in India, let alone rely upon such a finding to influence the decision to dismiss his application. The mother’s allegation remained, from start to finish, a bare allegation which was given no weight.
Grounds 2 and 9
The residue of Ground 2 and the entirety of Ground 9 allege the primary judge failed to take into account several material considerations which bore upon the likelihood of the father’s return to Australia with the child, if allowed to travel to India with her. Those material considerations were identified as, essentially, his skilled employment in Australia and his ownership of Australian real property.
The primary judge accepted that the father intended to take the child to India to celebrate the paternal grandfather’s 80th birthday, that the child would benefit from seeing paternal family members, and she would benefit from experiencing her family’s culture and country of origin (at [6]). However, as was not in doubt, his Honour noted the parties’ parental relationship was hostile and uncooperative (at [7], [9]) and his Honour was conscious of the mother’s assertion of risk that the child might not be returned to Australia (at [8]–[9]).
Contrary to the terms of these grounds of appeal, the primary judge expressly did accept and take into account the father’s evidence about his employment in Australia and his ownership of Australian property (at [10]). Notwithstanding, his Honour was satisfied there was some risk the child might be left in India with the paternal family and not returned to Australia, as the father could return without her (at [10]–[11]). As was pointed out, to avert the risk of the child being withheld in India, there was nothing to stop the father from travelling to India alone (at [13]).
Although not mentioned by the primary judge in the reasons for judgment, the mother alleged the father said to both her and the child at different times that he would take the child to live with the maternal grandmother in India and, having read the mother’s affidavit and responded to specific parts of it in his affidavit in reply, the father did not deny he had done so, and further, deposed that the child “would never say things that did not occur”.
The other overlooked considerations the father referred to in the appeal were his laudable work history, his accrued superannuation entitlements, and his government security clearance, all of which tended to imply that he would not risk relinquishing by remaining in India. Although each of those factors were mentioned in his evidence, none of them was posited by him to the primary judge as an influential consideration and so it is unsurprising they were not canvassed in the reasons for judgment. While they might motivate the father to return, those factors do not objectively bear upon the risk of the father’s failure to ensure the child’s return to Australia if taken to India.
Grounds 1, 3 and 8
These grounds collectively attack the ICL and the primary judge’s reliance upon the ICL’s submissions.
More specifically, these grounds allege:
a)the primary judge “acted upon a wrong principle by totally buying all biased submissions delivered by the ICL” (Ground 1);
b)the primary judge was “swayed in his judgements and reasonings [sic]” by the oral submissions made by the ICL (Ground 3); and
c)there was a “miscarriage of justice” based on the “misleading evidence submitted by the ICL” (Ground 8)
Ground 8 can be immediately rejected because the ICL filed no evidence at all.
Grounds 1 and 3 amount to no more than a complaint that the primary judge was persuaded by the oral submissions made by the ICL.
The ICL bore a statutory duty to independently and impartially represent the child’s best interests (s 68LA of the Act). To fulfil that function, the ICL was obliged to form her own view on the evidence about the nature and form of orders, both interim and final, which were needed to govern the child’s care. Although the father seemed not to appreciate the reality, when two parties hold diametrically opposed views about one or more aspects of a child’s care, as these parties did, it is inevitable that the ICL will form a view which conflicts with one party’s proposal and entirely possible that her view will conflict with both parties’ proposals. In this instance, the ICL simply formed a view which coincided with the mother’s and contradicted the father’s. There was nothing startling about that.
It is not to the point that the ICL supported an earlier application similarly made by the mother, in late 2018, to take the child on a trip to India. Her application was dismissed by the primary judge in November 2018, just as the father’s application was dismissed in September 2019. The ICL’s support of the mother’s past application was based on an assessment of the facts and circumstances known at that time and the ICL was perfectly entitled to change her views as facts and circumstances changed.
It is clear from the reasons for judgment that the primary judge was persuaded by the submissions made by both the ICL and the mother; but that was the very point of the hearing: to give the parties and the ICL the chance to persuade the primary judge why the orders for which they respectively contended should be preferred. These grounds are no more than criticism of the primary judge for properly discharging judicial duty.
Ground 6
This ground contended the primary judge gave inadequate reasons in relation to the dismissal of his application to take the child to India.
As discussed in respect of Grounds 2 and 9, the reasons given by the primary judge were ample. They clearly expose why the father’s application for an order permitting him to take the child to India was dismissed.
Ground 7
This ground contended the primary judge was “plainly unreasonable, unjust and contradicting”.
While the ground literally asserts the judge, as distinct from his Honour’s decision, was unreasonable, unjust and contradictory, we assume the complaint is meant to relate to the decision. Suffice to say, nothing about the decision was shown by the father to be unreasonable, unjust or contradictory.
Incidental to this ground of appeal, the father asserted the mother had made “ongoing sexual allegations” against him. It should be noted that the mother denied in her Summary of Argument that she has made any such allegations against the father at all and, so far as I can tell, neither the contents of the Appeal Book nor the Contested Appeal Book reveal any such allegation by her. By advertence to the second affidavit which the father relied upon before the primary judge, he culturally interprets the mother’s allegation that he once “…hit [the child] on the bum” as a sexual slur, but it cannot be reasonably construed as such.
Conclusion
The appeal should be dismissed as it is utterly without merit.
In the event of the appeal’s dismissal, the mother and the ICL both sought costs orders against the father for their party/party costs.
The ICL’s costs were modestly calculated at $6,994.37.
By comparison, the mother’s costs were calculated at $19,031.60 and, while the individual items may have been costed at scale, the items charged appear to reflect work done on a solicitor/client rather than party/party basis.
The appeal was wholly unsuccessful (s 117(2A)(e)), which justifies orders for the father to pay costs on a party/party basis, subject to consideration of his financial circumstances as a countervailing factor (s 117(2A)(a)).
The father deposed to “ongoing financial difficulties” and his child support assessment being based on his annual income of only $26,045, but he declared to the primary judge his exclusive ownership of assets with a net value of around $325,000 and superannuation of $258,720. To have pursued this appeal, he must believe he has the financial capacity to fund return trips to India for himself and the child. By comparison, the wife admitted to possession of assets with an approximate net value of only $7,000 and the father concedes she has superannuation worth only $2,354. She does not work and subsists on Centrelink benefits and the meagre child support paid by the father.
As the Full Court recently observed in Mallory & Mallory [2020] FamCAFC 62 at [9]):
…unmeritorious litigation is no less unmeritorious because it is pursued by a person who is or purports to be poor (Northern Territory v Sangare [2019] 93 ALJR 959 at [27]) and impecuniosity cannot be used as an unconditional shield against costs orders (see Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; Elias & Elias (No. 2) [2019] FamCAFC 92 at [14]).
The father should pay the mother’s costs of and incidental to the appeal, but those costs should be fixed at $7,000, which sum more properly reflects her simple defence of interim parenting orders against a self-represented litigant and which sum she accepted as reasonable. Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) enables costs to be awarded in a fixed sum to avert the need for another contest before a costs assessor, as has been explained by other Full Courts (Graham & Squibb (2019) FLC 93-892 at [92]-[93]).
As for the ICL, the father has not demonstrated on the available evidence that he will suffer hardship if ordered to bear the ICL’s total costs in the sum of $6,994.37 (s 117(4)(b)) and so he should pay those costs.
To extend the father some latitude, he should be allowed two months to pay the costs.
Tree J
I agree with the orders proposed by Justice Austin and his Honour’s reasons for them.
Kent J
I also agree that this appeal should be dismissed and as this appeal does not raise any issues of general principle the reasons may be given in short form. I agree with the reasons given by Justice Austin. I also agree with his Honour’s proposed costs orders and with his Honour’s reasons for those orders
This Court orders:
(1)The appeal be dismissed.
(2)The appellant father pay the respondent mother’s costs fixed in the amount of $7,000 within two months from the date of these Orders.
(3)The appellant father pay the ICL’s costs fixed in the amount of $6,994.37 within two months of the date of these Orders.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Kent, Austin & Tree JJ) delivered on 22 May 2020.
Associate:
Date: 29 May 2020
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