PANGKALA and TODD

[2019] FCWA 115

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: PANGKALA and TODD [2019] FCWA 115

CORAM: O'BRIEN J

HEARD: 30 APRIL 2019

DELIVERED : 4 JUNE 2019

FILE NO/S: PTW 5883 of 2018

BETWEEN: MR PANGKALA

Applicant

AND

MS TODD

Respondent

Catchwords:

PARENTING - Application for leave to appeal against interim order of a Family Law Magistrate - Test to be applied - Where applicant contends that Magistrate had a positive obligation to admit documents into evidence of his own volition when neither party sought to tender them - Where applicant refers to the principles to which the Court must give effect in child related proceedings - No merit in proposed grounds of appeal - Application dismissed.

PRACTICE & PROCEDURE - Where applicant seeks to adduce further evidence on appeal - Where there is no express provision in legislation permitting further evidence - Appeal by way of rehearing by its nature admits of the possibility of further evidence - Where the Court has power to admit further evidence notwithstanding absence of express legislative provision.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Berry SC
Respondent	:	No appearance
Independent Children's Lawyer	:	Ms Parkinson

Solicitors:

Applicant	:	Dimond Family Lawyers
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	DCH Legal

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172

Banks & Banks (2015) FLC 93-637

Bennett (1991) FLC 92-191

CDJ v VAJ (1998) 197 CLR 172

CDW v LVE [2015] WASCA 247

Eaby & Speelman (2015) FLC 93-654

Farmer & Rogers [2010] FamCAFC 253

Foley v Ellis [2008] NSWCA 288

Huntingdale Village Pth Ltd (Receivers and Managers appointed v Korda [2015] WASCA 101

Jess & Jess (2014) FLC 93-620

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Medlow & Medlow (2016) FLC 93-692

Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267

SCVG & KLD (2014) FLC 93-582

SS & AH [2010] FamCAFC 13

U v U (2002) 211 CLR 238

Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes & Dignan (1931) 46 CLR 73

Western Australia v Ward (2002) 213 CLR 1

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1[Mr Pangkala] (“the father”) and [Ms Todd] (“the mother”) have three children: [Child A] born [in] 2009, [Child B] born [in] 2012 and [Child C] born [in] 2016.

2Pursuant to interim orders made by a Family Law Magistrate on 28 November 2018, the children live with the mother in [Town A] and are to spend time with the father (who lives in [Town B]) during school holidays. The father seeks leave to appeal those orders and, if leave is granted and the appeal is allowed, that orders be made whereby the children would immediately come to live with him.

3Central to the father’s application and proposed appeal is his contention that the learned Magistrate erred in law by failing to admit into evidence various documents produced to the court pursuant to subpoenas issued at his request, and documents produced pursuant to an order directed to the Western Australia police. Consistent with that contention, and in seeking that this Court re-exercise the relevant discretion, the father filed an application in the appeal on 18 January 2019, seeking the admission into evidence of those various documents for the purposes of the appeal. That application also sought the admission into evidence of an affidavit sworn by the father annexing summaries of the contents of the same documents, and an affidavit of the maternal great-grandmother confirming the contents of a police statement made by her which was otherwise in evidence before the learned Magistrate.

4On 12 April 2019, the father filed a further application in the appeal seeking the admission into evidence of a further updating affidavit sworn by him, and an affidavit of [Ms B], who is his partner.

5The various applications came on for hearing on 30 April 2019. The father was present at the hearing, and was represented by senior counsel. The recently appointed Independent Children’s Lawyer (“ICL”) appeared, but did not seek to be heard in response to the application for leave to appeal or the other applications associated with it. The mother, who is now self-represented, did not attend the hearing. I record that she was called on several occasions in the precincts of the court, and that unsuccessful efforts were also made to contact her by telephone before the hearing proceeded.

Background

6The substantive proceedings were commenced by the mother filing an application on 27 July 2018, in which she sought a recovery order to secure the return of the children to her, and an order that they live with her until further order. On her case, the parties had finally separated in March 2018, having separated on a number of occasions previously. She said that she was the primary carer of the children while the father had worked fly in fly out. She said that the children had been in her care post separation and that the father failed to return them to her after the July school holidays.

7At the first return date on 1 August 2018, an order was made for the children to be returned to the care of the mother. A recovery order was issued, but on the basis that it would lie in the registry for several days to afford the father the opportunity to comply with the primary order. He was ordered to file a Form 1A response, and the matter was otherwise adjourned to 18 September 2018.

8The father returned the children on 22 August 2018. He filed his response on 14 September 2018, seeking an order for the appointment of an ICL, and interim orders for the children to return to Town B and live with him, and spend school holiday time with the mother. In the alternative, if the children were not living in Town B he proposed that they live with the mother and spend time with him during school holidays. He sought various other orders including an injunction restraining the mother from exposing the children to [Mr W] and his extended family, or to [Ms T].

9The mother did not attend the hearing on 18 September 2018. Orders were made to facilitate the children spending time with the father and the proceedings were otherwise adjourned for interim hearing on 15 November 2018 with orders also being made for the filing of further documents.

10The father then sought the issue of various subpoenas. He also filed an affidavit on 18 October 2018. At a hearing on 2 November 2018 the parties and those representing them were given leave to inspect and copy subpoenaed documents from certain schools, and to inspect subpoenaed documents from two hospitals.

11The father filed a further affidavit sworn by his mother on 15 November 2018. On that day an order was made permitting the applicant mother an extension of time to file and serve an affidavit in response to all of the material of the father together with a witness affidavit.

12The mother filed her affidavit on 27 November 2018.

13The father had, in the meantime, filed an amended response on 22 November 2018. He no longer sought the appointment of an ICL, but maintained his application that the children live with him on an interim basis in Town B. He sought further orders for the mother to undergo drug tests, while still proposing that the children spend time with her during the school holidays, provided she complied with the testing regime. He deleted those parts of his earlier application which had set out proposals in the alternative if the children were to remain in the care of the mother.

14The matter proceeded to an argument on 28 November 2018. Prior to that hearing the father had through his solicitors filed written submissions to which further reference will be made.

15Orders were then made in the terms already outlined. The transcript of the oral submissions made at that hearing, and the learned Magistrate’s ex tempore reasons for decision were before the court for the purposes of the present application.

Legal Principles – leave to appeal

16The parties were not married. The proceedings fall to be determined pursuant to the Family Court Act 1997 (WA) (“the Act”).

17The relevant orders are interlocutory in nature.[1] They were made by a Family Law Magistrate in the exercise of non-federal jurisdiction; leave to appeal is accordingly required.[2]

[1] CDW v LVE [2015] WASCA 247.

[2] Family Court Act 1997 (WA), s 221(1).

18If leave is granted, the appeal must proceed by way of a rehearing, but the court “may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the Magistrates Court”,[3] and “may make such decrees as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal”.[4]

[3] Ibid, s 211(2)(a).

[4] Ibid, s 211(2)(b).

19For leave to appeal to be granted, the Court must be satisfied that the decision in question is wrong, or at least attended with sufficient doubt to warrant the grant of leave, and that a substantial injustice will result from a refusal of leave to appeal. That test is to be applied in the general run of cases, but in the context of the unfettered discretion to grant leave to appeal. It may give way to the particular interests of justice in appropriate cases.[5]

[5] Medlow & Medlow (2016) FLC 93-692; Jess & Jess (2014) FLC 93-620; Huntingdale Village Pth Ltd (Receivers and Managers appointed v Korda [2015] WASCA 101.

20The first limb of the test is directed to the outcome at first instance, rather than to the path by which that outcome was reached, keeping a firm focus on the real issue – whether there is a realistic prospect of the decision being reversed if the appeal is permitted to proceed.[6] The consideration of the first limb of the test informs the consideration of the second.

[6] Jess & Jess (2014) FLC 93-620, [63].

21The legislative requirement that leave be granted before a party may appeal against an interlocutory order reflects the policy consideration that court resources “should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties”.[7]

[7] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, 583 [42].

22The requirement for leave in the present case, imposed as it is by statute, must be real and not merely illusory. While it is anomalous that unmarried parents in Western Australia require leave to appeal against a parenting order made by a Family Law Magistrate while married parents do not, that anomaly cannot in my view inform the consideration of whether or not leave should be granted in a particular case.

23Similarly, the further anomaly that nowhere else in the country do parents, whether married or not, require leave to appeal against an interim parenting order cannot inform that consideration. Self‑evidently, the application must be determined in accordance with the requirements of the legislation as it presently stands.

Legal Principles – the nature of an appeal by rehearing, and the introduction of further evidence on appeal

24There is no express provision in the Act to allow the introduction of further evidence on an appeal. That contrasts with the provisions of the Federal legislation relevant to appeals against decrees made by Family Law Magistrates.[8]

[8] Family Law Act 1975 (Cth), s 93A(2),

25That issue was considered by Thackray CJ, albeit without the benefit of exhaustive submissions, in Orosz & Sowards.[9] His Honour noted that notwithstanding the absence of an express provision in the state legislation allowing for the introduction of further evidence, the Family Court Rules 1998 (WA) adopt that portion of the Family Law Rules 2004 (Cth) dealing with appeals, including Rule 22.39 which deals with the introduction of further evidence and the procedure for seeking permission to do so. [10] His Honour considered the adoption of that rule to be appropriate, given what he regarded as the “clear implication” in s 211(2) that the appellate court has the option of considering evidence other than the evidence led in the court below.

[9] [2010] FCWA 99.

[10] Ibid.

26In my respectful view, his Honour’s conclusion is supported by an analysis of the nature of an appeal which proceeds by way of a rehearing, as distinguished from an appeal in the strict sense, or an appeal by hearing de novo.

27The Court’s jurisdiction on an appeal by way of rehearing has been described as “neither purely appellate nor purely original”.[11]

[11] CDJ v VAJ (1998) 197 CLR 172, [111]; see also Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes & Dignan (1931) 46 CLR 73, 108-110; Western Australia v Ward (2002) 213 CLR 1, [70]- [71]; Foley v Ellis [2008] NSWCA 288.

28In Allesch v Maunz,[12] the High Court said:

“For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers must be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.” (Emphasis added)

[12] Allesch v Maunz (2000) 203 CLR 172, 180 [23].

29Commonly with an appeal by way of hearing de novo, an appeal by way of rehearing by its nature admits of the possibility of further evidence, not before the court at first instance, being adduced.

30It follows that where legislation provides that an appeal is to proceed by way of rehearing, the Court must retain a discretion to admit further evidence on the appeal, whether or not the legislation contains an express provision to that effect.

31The question then arises as to the matters which inform the exercise of discretion in determining an application to adduce further evidence on the appeal. Guidance may be found in decisions in relation to s 93A(2) of the Family Law Act 1975 (Cth), while noting that the relevant authorities are in the context of the determination of appeals against first instance decisions made at trial, as distinguished from the interim decision presently under consideration.

32The discretion to admit further evidence “obviously needs to be exercised with much care in parenting cases”.[13] Further evidence which is not in dispute, and which accordingly is able to be evaluated and taken into account by the appellate court without the necessity of cross examination, will be readily admitted.[14] Where the evidence is not of matters which have arisen since the primary hearing, the failure to adduce that evidence at the primary hearing may be a relevant factor, although the weight to be attached to that failure will vary depending on all other relevant considerations.[15]

[13] CDJ v VAJ (1998) 197 CLR 172, [117].

[14] Ibid, [114].

[15] Ibid.

33The power to admit further evidence on appeal is remedial in nature. It “exists to facilitate the avoidance of errors which cannot otherwise be remedied by the application of conventional appellate procedures”.[16]

[16] Ibid, [109].

34That said, the power to receive further evidence on appeal is not “a solvent for correcting orders that the [appellate court] regards as unsatisfactory but which contain no appealable error.” Further evidence will not be admitted where the appellant fails to establish any error in the making of the orders, but simply seeks a new trial because on the whole of the evidence later available different orders might be made.[17] The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal.[18]

[17] Ibid, [148].

[18] Ibid, [111].

35Similarly, the determination of the threshold question as to whether leave to appeal is to be granted is not informed by the further evidence sought to be adduced.[19]

[19] Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267.

36Finality of litigation does have a role to play in the exercise of the discretion to admit further evidence on appeal;[20] again, however, the context of the individual case, particularly where the appeal is against an interim decision only, must be considered.

The applications to adduce further evidence

[20] CDJ v VAJ (1998) 197 CLR 172, [148].

37As already noted, the husband filed two separate applications for leave to adduce further evidence on the appeal.

38The first of those applications sought that all of the materials produced to the court under subpoena, and pursuant to the order directed to the Western Australia police, be admitted into evidence for the purposes of the appeal, together with the affidavits referred to earlier in these reasons. The second application sought that what might be described as “updating” evidence be admitted.

39Counsel for the father acknowledged that the first application could only have merit if I accepted his submission that the subpoenaed and police material should have been admitted into evidence by the learned Magistrate, despite no request being made at the relevant time that he do so.

40Counsel also made it clear that the second application would only be pursued in the event that the appeal was allowed, such that the updating evidence would properly inform the re-exercise of discretion. In those circumstances, he acknowledged that the mother must be granted proper opportunity to respond to that late filed material. Specifically, he did not seek that the evidence referred to in the second application be admitted either to inform the determination of the application for leave to appeal, or whether the appeal should be allowed.

The application for leave to appeal

41In his amended Notice of Appeal filed on 5 February 2019, the father identified the facts upon which he relied in support of the application for leave to appeal in the following terms:

(1)His Honour made an error of principle in failing to consider the risk of harm to which the children would likely be exposed by remaining in the Mother’s primary care.

(2)By refusing to adequately consider the Father’s application for live with and spend time arrangements, the Father is caused substantial injustice through the inability to make a similar application prior to trial, thus exposing the children to risk of harm for a considerable period of time.

(3)His Honour erred in failing to consider or admit into evidence subpoenaed material referred to in the written submissions of the appellant, in circumstances where the court was on on (sic) notice that such material, if admitted, was relevant to the consideration of the best interests of the children.

42In submissions, counsel for the father departed somewhat from the arguments advanced in the amended Notice of Appeal. He argued that the consideration of whether the primary decision was clearly wrong, or attended by sufficient doubt to warrant a grant of leave, is appropriately undertaken by reference to the grounds of appeal themselves; consistently with that approach, his submissions focused on the suggested merits of those grounds. He did not separately address the question of whether the failure to grant leave would effect a serious injustice on the father.

43The father’s proposed grounds of appeal are reproduced in full below:

1.The primary judge erred in law by failing to consider or adequately consider section 202B and section 202L of the Family Court Act 1997 and thereby not admit into evidence the following documents and categories of documents referred to in the respondent’s submissions filed 22 November 2018 at the hearing on 28 November 2018;

a)Subpoenaed records from WA Police in respect of the applicant, the respondent and [Mr W];

b)Subpoenaed records in relation to the children’s schooling since March 2018;

c)Subpoenaed records from [Hospital A] and [Hospital B] in relation to the mother’s health.

And thereby the Court’s discretion miscarried.

2.The primary judge erred in law by failing to take into account relevant evidence under section 66C of the Family Court Act 1997, in particular section 66C(2)(b), section 66C(3)(d), section (3)(f), section 66C(3)(h), section 66C(3)(i) and section 66C(3)(j) and thereby the Court’s discretion miscarried.

44As counsel submitted that the application for leave to appeal “stands or falls on [the court’s] view, really, about the merits of the appeal itself”, it is convenient to turn at this point to a consideration of those merits.

Ground one

45As already noted, prior to the hearing before the learned Magistrate, materials had been produced to the court by the Western Australia police in response to an order made pursuant to s 202K on 1 August 2018. Further materials had been produced by four schools and two hospitals in response to subpoenas issued at the request of the father, and the usual permission to inspect documents had been given at a hearing on 2 November 2018.

46On 22 November 2018, the solicitor for the father, who also appeared as counsel at the hearing before the learned Magistrate, filed written submissions for the purposes of the hearing. In those submissions, reference was made to documents produced by the Western Australia police in relation to the father, the mother, and Mr W, who is a man associated with the mother. Reference was also made to materials produced under subpoenas issued to the schools and hospitals.

47At the hearing on 28 November 2018, none of the documents referred to in those written submissions were tendered, nor was any request made that they be received into evidence.

48During the course of that hearing, counsel for the father referred in submissions to a “hard copy of Facebook messenger correspondence between the mother and [Mr W]”. The learned Magistrate interrupted counsel’s submissions with the following query:

“Can I just check, [counsel]. This is material that is not in any of the evidence before me that you’re now referring to from the bar table?”

49Counsel acknowledged the point and explained that the document in question had only been received the previous day, and had not yet been disclosed. In the course of the exchange which followed, his Honour enquired whether there was “any other material that is going to be sought to be handed up in a similar vein.” Counsel then referred to a post on the mother’s Facebook page. At His Honour’s direction, the materials in question were provided to counsel appearing for the mother; once he took instructions, they were tendered into evidence by consent.

50Later in her submissions, counsel for the father made reference to a text message sent from the mother to the father, saying:

“Your honour, I have a copy of that text message if you would like to inspect that or my colleague (sic)”.

51His Honour’s response was direct and clear. He said:

“It’s not up to me to tell you what documents you want to rely upon in support of your client’s case.”

52Again, a copy of the document was provided to counsel for the mother, and was then tendered into evidence.

53In her primary oral submissions at the hearing, counsel for the father made no reference to the specific documents referred to in her written submissions. She did, however, in the course of submissions responding to counsel for the mother, refer to various conclusions she asserted could be drawn from what she described as the “return of subpoena material”. His Honour did not repeat his earlier queries or observations as to documents not in evidence before him.

54By ground 1 of the proposed appeal, the father asserts that his Honour was in error by failing to proactively receive into evidence the documents produced by the Western Australia police and under subpoena, in circumstances where he was not requested to do so by either party. He asserts further that his Honour was in error by failing to then have proper reference to those documents in exercising his discretion as to what parenting orders should be made on an interim basis.

55In support of that assertion, counsel for the father advanced a number of arguments based on the nature of parenting proceedings, and the provisions of ss 202B and 202L of the Act.

56First, counsel submitted that parenting proceedings are not “purely adversarial”, referring to the well-established position that the Court is not bound to simply choose between the competing proposals of the parties and may make orders not specifically proposed by them, provided procedural fairness is observed. He referred to the observations of Hayne J in U v U that it would be “quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular ‘proposals’” of the parties, thereby confining the Court’s enquiry to what the parents suggest is in the child’s best interests and to thus “disobey the fundamental requirement of the act that the court regard the best interests of the child as paramount”.[21]

[21] U v U (2002) 211 CLR 238, 275 [171].

57Of course, Hayne J went on to say:[22]

“That is not to say that the Family Court is to embark upon some roving enquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)”

[22] Ibid, [172].

58His Honour’s observations were made prior to the enactment of Division 11A of Part 5 of the Act. For the reasons which follow, however, in my view they remain apposite.

59Section 202B sets out the principles to which the Court must give effect in performing duties and exercising powers in relation to child-related proceedings, and in making other decisions about the conduct of child related proceedings. Those principles are then set out in the following terms:

(4)The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

(5)The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

(6)The third principle is that the proceedings are to be conducted in a way that will safeguard —

(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and

(b)the parties to the proceedings against family violence.

(7)The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.

(8)The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

60Section 202B(2) provides that “failure to give effect to the principles does not invalidate the proceedings or any order made in them.” As will appear, in my view the proper determination of the merits of the father’s contention does not require reference to that section, albeit my conclusion is if anything reinforced by it.

61Counsel made specific reference to the first, second and third principles set out above.

62In essence, he argued that in circumstances where it was clear that counsel for the father had failed to seek the admission into evidence of documents which she regarded as being central to the submissions she was making, the proper application of the principles obliged the Magistrate to intervene by admitting those documents into evidence of his own motion.

63With due respect to counsel, in my view that submission goes too far.

64The introduction into the Family Law Act 1975 (Cth) of Division 12A of Part VII of that Act, and the subsequent adoption of identical provisions in the Family Court Act, was directed to making parenting proceedings “less adversarial”, more child focused, and more efficient. So much is clear from the provisions of s 202E, listing the Court’s general duties in giving effect to the principles. It is noteworthy that those listed general duties do not include any express duty of the nature contended for by the husband’s submission.

65The Court is required to give effect to the principles in performing duties and exercising powers “in relation to child related proceedings”, and in making decisions “about the conduct of” those proceedings. That does not, in my view, extend to the imposition on the Court of an obligation to conduct its own enquiry as to what evidence might properly inform a determination of what parenting order would be in the best interests of the particular child the subject of the proceedings.

66Indeed, reference to s 202L is also informative. While that section is headed “Court’s general duties and powers relating to evidence”, it in fact imposes no duties at all; it merely lists powers which the court may, in its discretion, exercise.

67That, in turn, is consistent with the observations of Hayne J referred to above. In my view, the purpose of the relevant provisions is to empower the Court to ensure that the case is conducted by the parties in accordance with the principles, and that the evidence adduced by them is focused on, and relevant to, the determination of matters in issue. The provisions do not in any sense relieve the parties of the primary responsibility for the presentation of their respective cases, nor cast that burden on the Court.

68Having specifically drawn to the attention of counsel for the father the fact that she was seeking to refer in submissions to materials not in evidence, the learned Magistrate discharged his relevant duty. Indeed, it might fairly be argued that where the father was represented, his Honour was not under an obligation to draw even that point to counsel’s attention; in the absence of more detailed submissions I express no concluded view in that regard.

69My conclusion is not altered by reference to the overarching responsibility of the Court to make parenting orders which are in the best interests of the children, and to hold those best interests as paramount. That overarching responsibility, of course, has been present in the legislation since its inception, well before the observations of the High Court earlier referred to.

70My conclusion is also, in my view, consistent with the observations of the Full Court in Farmer & Rogers, and the references therein to the purpose and intent of Division 12A of Part VII of the Family Law Act..[23]

[23] Farmer & Rogers [2010] FamCAFC 253, 193-224.

71I conclude that ground 1 of the proposed appeal is without merit, and accordingly does not support any contention that the primary decision is wrong or attended with sufficient doubt to justify the grant of leave to appeal.

72Given the relevant concession made by counsel on the appeal, it follows that the father’s Form 21 application filed on 18 January 2019 should be dismissed.

Ground two

73The second ground of the proposed appeal contends that the learned Magistrate “erred in law by failing to take into account relevant evidence” by reference to particular subsections of s 66C.

74The merits of that ground, self-evidently, must be assessed by reference to the evidence that was actually before his Honour.

75That evidence was:

1.the case information affidavit of the mother filed on 27 July 2018;

2.the case information affidavit of the father filed on 14 September 2018;

3.an affidavit of the father filed on 18 October 2018;

4.an affidavit of the father’s mother, Ms S, filed on 15 November 2018; and

5.an affidavit of the mother filed on 27 November 2018.

76In her case information affidavit, the mother said that the parties began living together “on and off” in 2010, and had separated “multiple times” before finally separating in March 2018. She said that she and the father had lived in Town B during their relationship, and that she was the primary carer of the children while the father was employed on a fly in fly out roster, or based away from home. That continued until, on her evidence, the father lost his job in March 2018 as a result of a positive drug test.

77She described the circumstances of the parties’ separation, and aggressive behaviour by the father while under the influence of alcohol or drugs. She and the children remained in [Town C] with family after the separation, and the children were enrolled in a local primary school. The father returned to live in Town B, but maintained frequent albeit sporadic telephone communication with the children. She said that she and the children were now living in her mother’s rental accommodation, together with her mother and her mother’s husband.

78She gave further evidence that the father had been involved in a fight [in early] 2018, the day of her uncle’s funeral, and was taken to [Town D] hospital as a result. Agreed arrangements were made for the children to spend time with the father in the July school holidays, but there was then a dispute about the return of the children to her care. That dispute led to the institution of the proceedings.

79The mother gave evidence of violence in the relationship, and exposure of the children to violence involving the father and his extended family. She gave further evidence that the father used alcohol to excess, and used methamphetamines during the relationship every second to third day. She acknowledged having previously used illicit drugs, including methamphetamine, but said that she was no longer using, and that she drank alcohol on a “social basis”.

80In his case information affidavit, the father agreed that the parties had finally separated in March 2018, after having been previously separated on “various” occasions. At the time of swearing his affidavit he was living with his aunt, but intended to move shortly into his own accommodation. He gave evidence that for the majority of the relationship he worked on a fly in fly out basis, working eight days on and six nights at home, and that the mother was the primary carer of the children when he was working. That said, he gave evidence that when he was at home, he spent the majority of his time with the children, caring for their everyday needs, and that the mother would not hesitate to leave them in his sole care.

81He said that the family had lived in Town B since about 2011. On his case, the mother’s move with the children from Town B to Town C in 2018 was unilateral and she had led him to believe that she was only going to Town C for a visit. He said that when the children were in his care during the July 2018 school holidays he became aware that the wife was not permanently living with the children in Town C, but was living on what he described as a “transient basis in [Town D] and [Town C] with her new boyfriend”, leaving the children with paternal grandparents at various times. He said that to the best of his knowledge the maternal grandmother lived in [Suburb A in Town C]. He asserted that Mr W was the mother’s boyfriend, and had an extensive history of criminal activities including violence and methamphetamine use. He alleged further that, at the instigation of the mother and Mr W, extended family members had come to Town B to assault him. He also alleged that the mother and Mr W had been heavily intoxicated in the presence of the children, and that the children wanted to return to Town B.

82The father acknowledged that an order had been made on 1 August 2018 for him to return the children to the mother on 4 August 2018 at [a café] in Suburb A. He said that the mother did not arrive as arranged, and that he returned with the children to Town B and enrolled them in school. The mother then sought to rely on the recovery order, and the children were removed from his care having (on his case) been in his care for six to seven weeks by that point. He said that the mother made little effort to communicate with the children during that period. To the best of his knowledge, after the children were returned to her, the mother relocated to Town A and was living with Mr W and her sister.

83The father disputed the mother’s allegation that he had lost his job because of failing a drug test, but admitted that “historically [he had] recreationally taken methamphetamine”, as had the mother. He denied current drug use. He acknowledged that there was family violence between the parties during their relationship, but said they were both equally responsible for that.

84In his affidavit filed on 18 October 2018, the father went into further detail regarding his involvement with the children during the relationship, when he was home from his employment. He emphasised his Aboriginal heritage, and his efforts to teach the children about Aboriginal law and culture, and encourage their participation in that culture.

85He alleged that, shortly prior to the July 2018 school holidays, Child A had told him that the mother was behaving in a violent fashion towards the children. He contacted the police and requested a welfare check, but did not hear back from them. He went on to describe the children’s demeanour during their time with him during the July 2018 holidays, and what he alleged they had said about the mother’s involvement with Mr W and their living arrangements.

86He again acknowledged the orders made on 1 August 2018. His account of what transpired on 4 August 2018 differed somewhat from that contained in his case information affidavit; in the earlier document, acknowledging that handover was to take place at 5.00 pm in the cafe at Suburb A, he said:

“I purchased plane flights for me and the three children and attended [the café] in accordance with the Family Court Order. The mother did not arrive to collect the children. I deliberately purchased food and obtained a receipt from [the café] to prove I was there and have the receipt for the plane flights also. I then returned home to [Town B] with the children.”

87In his later affidavit, he said:

“On 4 August 2018, I took the children to [the café] for lunch. Around this time, I received a telephone call from [the mother] where she told me that she was not going to meet me at [the cafe] and that she was currently in [Town D].… I was surprised that [she] was not coming to collect the children per the court order in circumstances where we had all travelled from [Town B] to [Town C] to meet at the location she had requested.”

88The cafe’s receipt annexed to that affidavit indicates that the father and the children purchased meals just after 1.00 pm. The travel agent’s itinerary annexed to the affidavit, confirming the purchase of tickets for the father and the three children to fly from Town C to Town B is dated 6 August 2018. Correspondence from the mother’s lawyers asserting that the parties had agreed to change the venue for handover to Town D is also annexed to the affidavit; that correspondence, addressed to the court, was dated 7 August 2018. It was not referred to in the father’s case information affidavit, and in his later affidavit the father simply said:

“I did not receive any phone call, email or written correspondence about changing the handover location for the Children prior to 4 August 2018.”

89The father then confirmed returning the children in accordance with the recovery order on 22 August 2018. He said that the mother made threats of violence towards him at the time. He confirmed that he continued to spend time with the children after their return. He went on to recount correspondence between his lawyers and the mother, and his own physical contact with her at handovers, where he suggested she was abusive, and appeared to him to be drug affected. That said, he said that a subsequent handover in Town A on 5 October 2018 occurred without any difficulty.

90He went on to describe his current circumstances, and his intention to remain drug free and engaged in meaningful employment. He said that the mother “is a good mother but [he] consider[s] that she is going through a tough time in her life and is addicted to methamphetamine.”

91In her affidavit filed on 15 November 2018, Ms S said that she lives in Town A with her long-term partner, spending time with the father when she visits Town B or when he visits her. She described a close and loving relationship with him, and with the children. She described her love for both parties, but described concerns about the mother’s alcohol consumption and possible drug use.

92Ms S also described spending time with the children in April 2018 at the request of the mother. She said that the mother had indicated a willingness for the father to care for the children and enrolled them in a school in Town B. At that point, Ms S says she returned from Suburb A to Town A with the children, enrolling them in school temporarily with the intention that they would go to school in Town B within a few weeks. She described concerns about the mother’s living arrangements in Town D and later in Town A, and gave evidence about her interaction with the children after the July school holidays when they spent time with the father. She also described an encounter with the mother and the maternal grandmother on 22 September 2018, and that she was present at the handover on 5 October 2018 which occurred without incident. She described a recent deterioration in her relationship with the mother, and expressed concern that she was using methamphetamine and was in a relationship with Mr W.

93Ms S went further to say that she had recently been informed by the mother’s grandmother that the mother was acting in a wild and aggressive manner, and had instigated a car chase through the streets of Town D, threatening to bash her, at a time when the youngest child, Child C, was in the car with her. She annexed to her affidavit a statement made by the mother’s grandmother to the police.

94In her affidavit filed on 27 November 2018, the mother described the earlier separations of the parties in more detail, including what she said was a separation in around late 2010 for about a year when she moved to [Town E] with Child A. She described the history of the father’s employment arrangements, and her care of the children, in more detail than previously given. She said that after their reconciliation in late 2011 or early 2012, the parties had lived initially in Town B, then in [Town F] for about six or seven months, then in Town C, then again in Town B and in [Suburb B] (which is in the city of Town B).

95She disputed the father’s account as to his efforts to spend time with the children after separation, saying that he showed little interest. She said that, while living with the children and her mother in Suburb A, she was the children’s primary carer as her mother worked full-time, and that the children regularly attended school.

96On her version of events, the paternal grandmother asked in July 2018 whether she “wanted a break from the children”, and she agreed to the children spending time with the father’s family for those holidays. She sent the children to the paternal grandmother in Town A, where they attended the local primary school for the last week of term. The father’s family then took the children to Town B to see him, and she was expecting them to return at the end of the school holidays. On her evidence, she then received a text message from the father saying that he would not return the children, leading her to commence proceedings.

97She said that immediately following the court appearance on 1 August 2018, she told the father that she would be in Town D on 4 August and asked him to return the children to her there, rather than in Suburb A, and that he agreed. She disputed the father’s account of taking the children to the Town B police station to return them pursuant to the recovery order, saying that she travelled to Town B to collect the children and that when she advised the father that she was coming, he turned off his mobile phone. She described the police as having difficulty in locating the father, as well as her own efforts to track him down. She accused the father of making threats of violence towards her, and denied his allegation that she made threats.

98She said that she did not agree to the children spending unsupervised time with the father’s parents because they both sell drugs. She said that they regularly transport drugs from Town A to Town B. She alleged that the father had made little effort to contact the children since his involvement in the fight earlier referred to.

99The mother otherwise disputed much of the father’s recount of the history of care of the children during their relationship. She said that she had been a stay-at-home mother since the children were born. She described significant family violence in the relationship. She denied ever being violent towards the children. She acknowledged drinking alcohol during the relationship, and smoking cannabis, which she said she purchased from the father’s parents. She said that she had been introduced to methamphetamine use by the father, and had stopped using after separation. She alleged also that on two separate occasions the father had attempted suicide. On her case, the father’s methamphetamine use during the relationship was significant.

100She denied ever having been in a relationship with Mr W, saying that both she and the father are simply friends of his family. She acknowledged that the children had attended a variety of schools since separation as she tried to obtain stable accommodation. The maternal grandmother had initially provided them with accommodation in Suburb A, until she had to move to Town A for work. She said that she now lived in Town A with the maternal grandmother and that the children were attending the local school.

101She denied the father’s version of the “car chase” in Town D, while acknowledging some family feuding. On her evidence, it was her grandmother who drove dangerously and was aggressive, assaulting her sister by hitting her in the face with a brick.

102She emphasised that she and the children now had stable accommodation in Town A, living with the maternal grandmother in a rental property provided through her full-time employment as [an] [administrative assistant]. She said that she continued to be the children’s primary carer, and that they were attending school and doing well.

The Magistrate’s reasons for decision

103The learned Magistrate delivered brief ex tempore reasons for his decision. While no ground of appeal was directed towards the adequacy of those reasons, at the hearing before me counsel for the appellant directed some criticism towards those reasons in the context of arguing that his Honour had not properly taken into account various matters, failed to identify the relevant evidence adduced by each party, and assess, on the balance of probabilities, which account of the various matters was more likely to be accurate.

104In particular, counsel suggested that his Honour may have fallen into the error identified by Ryan J when her Honour cautioned against evidence being “disregarded” merely because facts are in dispute, leaving the interim determination to be made “solely by reference to the agreed facts”.[24]

[24] Eaby & Speelman (2015) FLC 93-654, [18].

105With due respect to counsel, in my view the learned Magistrate did not fall into the error described. The evidence actually before him (as distinguished from that which was not, and which counsel contended would have provided some independent corroboration assisting in a determination of some of the matters in dispute) simply did not permit his honour to “weigh the probabilities of [the] competing claims and the likely impact on [the] children in the event that a controversial assertion [was] acted upon or rejected.[25]” The circumspection with which findings on an interim hearing must be couched is well-established, and remains “no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence”.[26]

[25] SS & AH [2010] Fam CAFC 13, [100].

[26] Ibid, [88].

106The competing proposals of the parties were identified in his Honour’s reasons, albeit in broad terms. So too were the “serious and significant risk issues raised by both parties”. While it is true that his Honour did not recite those identified risks or the evidence in support of them in the detail descended to above, his reasons were given ex tempore and in the context of a list of several matters. Reasons need not be lengthy to be adequate, provided the reasoning which led to the decision is able to be ascertained.[27]

[27] Bennett (1991) FLC 92-191.

107While, with respect, it would have been preferable for his Honour’s reasons to go into more detail and to more clearly articulate (for example) the clear position that the statutory presumption of equal shared parental responsibility does not apply in this case, the reasoning which led to his Honour’s decision is readily ascertained. It was not necessary for him to go beyond those issues which required determination prior to a proper determination at a trial, nor to discuss each primary and additional consideration set out in the legislation where those considerations did not inform the interim decision to be made.[28]

[28] Banks & Banks (2015) FLC 93-637; SCVG & KLD (2014) FLC 93-582.

108His Honour found that the mother had been the primary caregiver of the children both before and after separation. He found further that the children and the mother were, at the time of his decision, living in Town A in what appeared to be stable accommodation and that the children were attending school. Those findings were clearly open to him on the evidence, and were largely uncontested in any event. His Honour expressed the view that the children “have had more than enough upheaval in recent times”; again, that conclusion was born out by the evidence of both parties.

109His Honour considered himself unable on the evidence before him to reach any safe conclusion as to the veracity of the competing allegations of risk, or the disputed accounts of various events. As already noted, that evidence was inadequate to enable even a weighing of probabilities as to that veracity. He accordingly gave particular weight to the apparently stable present circumstances of the children against the background already outlined, and was not persuaded that removal of the children from those circumstances, and from the primary care of the mother, was in their best interests in the short term.

110On the evidence before his Honour, those conclusions cannot fairly be said to be attended with sufficient doubt to warrant the grant of leave to appeal. Indeed, on the evidence actually before him, it is difficult to see how his Honour could properly have taken the course proposed by the father.

111That is not to say, however, that his Honour could not have made further orders to progress the matter towards trial so that the evidence could be properly tested. In my respectful view, his Honour should have done so. The absence of such orders was not a matter raised in the Notice of Appeal, and may appropriately be dealt with in the context of the future management of the substantive proceedings.

Conclusion

112The father’s application for leave to appeal would properly be granted if I concluded that the decision of the learned Magistrate was, on the evidence before his Honour, plainly wrong or attended with sufficient doubt to warrant the grant of leave. For the reasons outlined above, in my view that conclusion cannot be reached.

113As already noted, counsel for the father conceded that in the event I concluded that the learned Magistrate was not under an obligation to proactively admit materials into evidence when not requested by the parties to do so, the application by the father for the subpoenaed and other materials to be before this court on appeal would fall away.

114Similarly, counsel acknowledged that the father would only seek to rely on the evidence referred to in his application filed on 12 April 2019 in the event that leave to appeal was granted, the appeal was allowed, and the relevant discretion was to be re-exercised.

115Accordingly, the application for leave to appeal, the Form 21 application of the father filed on 18 January 2019 and the Form 21 application of the father filed on 12 April 2019 will be dismissed.

116While the interim orders made by the learned Magistrate on 28 November 2018 are to remain in force, the various issues raised by the parties are serious. They require proper determination at trial where the evidence can be tested, and at which it is to be anticipated the recently appointed ICL will have had the opportunity to undertake her role. It is clearly in the best interests of the children that those issues be properly determined as soon as possible.

117For those reasons, at the hearing of the appeal I asked counsel for the father and the ICL to confer, and give careful consideration both to the work required to properly prepare the matter for trial, and the time needed to undertake that work, so that the court can accommodate the earliest achievable trial listing.

118I will hear from the parties and from the ICL in relation to those matters, with the intention of making the necessary procedural orders on the delivery of these reasons.

Orders

1.The father’s application for leave to appeal filed 21 December is dismissed.

2.The father’s Form 21 applications filed 18 January 2019 and 12 April 2019 are dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate to the Judge

4 JUNE 2019