Paterson & Hamdy
[2022] FedCFamC1A 118
•29 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Paterson & Hamdy [2022] FedCFamC1A 118
Appeal from: Paterson & Hamdy [2022] FedCFamC1F 205 Appeal number(s): NAA 71 of 2022 File number(s): SYC 1229 of 2018 Judgment of: MCCLELLAND DCJ, ALDRIDGE & RIETHMULLER JJ Date of judgment: 29 July 2022 Catchwords: FAMILY LAW – APPEAL – INTERIM PARENTING – Where the father appeals against interim parenting orders – Where the father’s application to spend supervised time with the children was dismissed by a senior judicial registrar and subsequently the primary judge dismissed an application for the review of that decision – Where the children had not spent time with the father for several years – Children’s wishes – Where the evidence of Family Report did not support the father’s proposed orders – Allegations of actual and apprehended bias not substantiated – No error of law or fact – Findings were open on the evidence – No error established – Appeal dismissed – Father to pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, r 13.39
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16
SS & AH [2010] FamCAFC 13
Number of paragraphs: 52 Date of hearing: 30 June 2022 Place: Sydney, delivered in Melbourne The Appellant: Litigant in person Counsel for the Respondent: Ms Conte-Mills Solicitor for the Respondent: John Spence & Associates ORDERS
NAA 71 of 2022
SYC 1229 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PATERSON
Appellant
AND: MS HAMDY
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & RIETHMULLER JJ
DATE OF ORDER:
29 JULY 2022
THE COURT ORDERS THAT:
1.Leave to file the Application in an Appeal dated 28 June 2022 is refused.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs fixed in the sum of $3,696.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paterson & Hamdy has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & RIETHMULLER JJ:
INTRODUCTION
Mr Paterson (“the father”) has appealed against interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 1 April 2022 in proceedings between Ms Hamdy (“the mother”) and himself. The effect of the orders was that the father’s application to spend supervised time with the parties’ two children, born in 2005 and in 2010, was dismissed on the review of orders made by a senior judicial registrar.
The father last spent time with the youngest child in 2015 and with the elder child when she visited him in gaol in February 2016. The father was incarcerated in mid-2015 and released in mid-2019.
The orders sought by the father were that the younger child spend supervised time with him once every two weeks, as well as a 30 minute telephone call in each alternate week. The father was content for the elder child to spend time and communicate with him in accordance with her wishes. The father also sought orders that the parties and both children attend upon a family therapist for the purpose of improving the children’s relationship with the father.
The primary, but not sole, basis on which the application was refused, was that the children had not spent any time with the father for some years. The primary judge considered that it was not appropriate to change that on an interim basis, especially having regard to the children’s firm and unequivocal views that they did not wish to spend time with the father and that they remembered him as “scary” (at [102]–[103] and [110]). The primary judge accepted, for the purpose of the application, the evidence of the Family Report writer that the younger child would experience supervised time with the father as stressful and overwhelming and that that the Court may need to prioritise his psychological safety over any relationship with the father (at [105]–[106]).
APPLICATION TO ADDUCE FURTHER EVIDENCE
On 28 June 2022, two days before the hearing of the appeal, the father sought to file an Application in an Appeal seeking to adduce further evidence and an accompanying affidavit. The appeal registrar refused to file the documents. At the hearing of the appeal, the father sought leave to rely on them. That application faced a number of difficulties and was dismissed. These are our reasons.
Rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires an application to adduce further evidence on appeal to be filed at least 14 days before the commencement of the sittings in which the appeal is to be heard. The father gave no explanation for not complying with this rule other than to say he was not aware of it.
Obviously, if the father was permitted to rely on the further evidence the mother would be disadvantaged by having to deal with the proposed material on the run or be forced to seek an adjournment.
These matters were sufficient in themselves to dismiss the oral application.
As the father himself recognises, most of the proposed material was available at the time of the hearing. Not only should parties be bound by the decisions they make as to how they conduct their proceedings, but “[w]here the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion” (CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ ”) at [116]).
The balance of the affidavit consists of material produced on subpoena from the Department of Home Affairs (international travel documents for the family prior to 2015) and from a bank (documents concerning a security deposit box). Again, there is no apparent reason why the subpoenas could not have been issued at an earlier time.
Importantly, the evidence did not relate to recent events and its main use, according to the father, was to show that the mother’s evidence should not have been accepted. As no credit findings were made by the primary judge, the relevance of this material is questionable. We are quite unpersuaded that “the further evidence would have produced a different result if it had been available at the trial” (CDJ v VAJ at [111]).
Thus, even excusing the other difficulties, there was no basis for receiving the proposed evidence.
THE APPEAL
The father raises six grounds of appeal but the essence of the challenge is that the primary judge should have held that the best way to assess whether the children wish to and should spend time with him, should be determined by them actually spending some time with him.
Was the primary judge biased? (Ground 6)
It is necessary to commence with Ground 6 which asserts that the primary judge was biased as this ground goes to the integrity of the trial process itself (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128).
It is not entirely clear whether the father submits that his Honour’s conduct would lead a reasonable bystander to apprehend that there was a possibility of prejudgment, or whether the submission was in fact that the primary judge was biased. The test for the two is quite different.
The test that is applied in determining whether a judge is to be disqualified by reason of the appearance of bias, is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]). In order to satisfy that test, the enquiry requires two steps. First, is the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. The second is there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]).
Actual bias on the other hand, requires the father to demonstrate that the primary judge’s mind was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Such a finding should not be made lightly (South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]).
The father’s Summary of Argument filed on 15 June 2022 does not identify the matters he relies on to establish either the apprehension of prejudgment or actual bias. His submissions merely say:
3.24.From the Transcript anyone going through the Transcript thoroughly will notice that [the primary judge] has already made up his mind before the commencement of the hearing and there was hints given to the Respondent solicitor and to me in regards to the outcome which was going to be for the Respondent and her solicitor. …
(Father’s Summary of Argument filed on 15 June 2022, paragraph 3.24)
That is not an acceptable submission: we should have been taken to the relevant passages which the father relied on to show pre-judgment or bias. As explained in Bahonko v Sterjov (2008) 166 FCR 415, this is because:
3.… It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
In his oral submissions, the father said the primary judge cleverly disguised his biased approach so that it could not readily be seen by reading the transcript, but it would become apparent on a careful reading.
Nonetheless, we have read the transcript. Even on a careful reading, we are quite unable to see any comments made by his Honour that give rise to any apprehension of prejudgment whatsoever, let alone actual bias.
The father also submitted that bias had been established because the primary judge did not ask questions about the alleged family violence, the alleged deficiencies in the Family Report and did not ask the mother’s lawyer any questions. Even if that was correct, it falls well short of demonstrating even an apprehension of bias. A judge is entitled to seek such assistance from parties and their representatives as he or she thinks necessary and desirable to resolve the proceedings before them.
This ground is not made out.
Did the primary judge fail to properly consider the evidence in support of the application, in particular the father’s evidence that there had been no history of family violence?
(Ground 1)In order to determine this ground, it is necessary to look in some detail at his Honour’s reasons on this aspect of the case.
In her affidavits, the mother made some brief and general allegations of violence which was described by the primary judge as being “limited” (at [19]). Rather more extensive evidence came from a psychological assessment of the mother by her treating psychologist, which recorded extensive allegations by the mother of physical, verbal and emotional violence at the hands of the father. Such allegations were repeated in a Child Inclusive Conference Memorandum dated 3 June 2019 and a Family Report of 17 December 2020.
Significantly, the Family Report writer recorded allegations made by the eldest child that she had some memories of the father having been violent towards the mother and that “what [she] can remember is that [the father] is scary” (at [24]).
The father denied all allegations of family violence whatsoever. Instead, he asserted that the mother’s assertions had been entirely fabricated and that the children had been brainwashed into making statements to the Family Report writer.
In Goode and Goode (2006) FLC 93-286, which was referred to by the primary judge, the Full Court said:
68.…the procedure for making interim parenting orders will continue to an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
That does not mean that allegations of conduct that would affect the welfare of the children are to be ignored. As Boland and Thackray JJ said in SS & AH [2010] FamCAFC 13:
100.… It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In making an assessment as to what interim orders will be in the best interests of a child, the Court is required to adopt a conservative approach or one which is likely to avoid harm to a child (Marvel v Marvel (2010) 43 Fam LR 348 at [120]).
His Honour’s conclusions as to the need to protect the children from any harm were:
93.On the material before me, I could not make any safe finding at an interim hearing as to the mother’s allegations of family violence. I am mindful that the mother’s evidence is not fanciful or inherently unreliable. I am required to give it weight for the purpose of the interim determination.
94.The father was incarcerated for a significant period of time. He has not been forthright about the reasons for his incarceration, nor has he adduced reliable evidence as to his criminal history. The family report records:
56. [The father] said that he would not answer any questions pertaining to illegal substance and alcohol misuse, as instructed by his legal representative, save wishing to note that he was “under duress in my criminal case” and that he has had “no other criminal problems my entire life”. He reiterated that there is an appeal afoot concerning his criminal matter.
95. In the circumstances I am cautious when considering the father’s evidence.
96.I am mindful of not exposing the children to a risk of psychological harm should they be thrust into a situation of spending time with their father which they may experience as traumatic.
It can be seen that although the primary judge could not make a finding about family violence on the affidavit evidence alone, he did not ignore the evidence of family violence. His Honour approached the matter by considering the nature of the evidence on this issue, noting that the mother’s evidence did not appear to be fanciful and expressed some reservations about the father’s evidence. Importantly, his Honour took into account the fact that, whether or not there had been a history of family violence, the children considered the father to be scary and there was a risk that being brought suddenly into contact with the father would be a traumatic experience which may be harmful to them.
It is clear that his Honour considered the evidence of the father in the manner in which he was constrained to do by the application of the above relevant authorities.
No error has been demonstrated.
Did his Honour fail to apply the law correctly? (Ground 2)
The father submitted that the primary judge did not apply the law correctly because:
3.7 …there is nowhere in the world or under any law in the world that prevents the father (parent) and his (her) children from enjoying a meaningful relationship with each other unless the father or the (parent) murdered people or there is overwhelming material evidence in front of the Family Court that the father or (parent) has an extensive violent history.
(Father’s Summary of Argument filed on 15 June 2022, paragraph 3.7) (as per the original) (as per the original)
This, however, is not the law.
The Court, when determining what parenting orders should be made, is required to consider the best interests of the children as the paramount consideration (s 60CA of the Family Law Act 1975 (Cth) (“the Act”)). In determining those best interests, the Court must have regard to the matters in s 60CC of the Act. Section 60CC(2) and s 60CC(2A) provide:
…
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Thus, the benefit of having a meaningful relationship with a parent is but one of the considerations to be taken into account. However, in some situations, the Court may find that a child would not benefit from a relationship with a parent. Even if a child might benefit from such a relationship that benefit is, by force of these provisions, outweighed by the need to protect the child from being subjected to or exposed to abuse, neglect or family violence. There is no right, as the father would have it, for him to have a relationship with the children regardless of all other considerations.
Was there a denial of natural justice and was the decision unreasonable or plainly wrong? (Grounds 3 and 4)
It is convenient to deal with these grounds together.
In his submissions, the father did not identify any event that was said to be a denial of natural justice, rather, he submitted that the decision was “‘plainly unjust’ and exceeds the reasonable exercise of discretion” (Father’s Summary of Argument filed on 15 June 2022, paragraph 3.11). This was because:
3.12 There is no evidence what so ever in front of the Family Court and in front of [the primary judge] that there is any violence what so ever or any violence history or any AVO’s or any evidence what so ever in regards to the false, misleading and concoction claims of the Respondent the mother … .
3.13 There is an overwhelming evidence in front of the Court and in front of [the primary judge] in regards to the Children and the mother (the Respondent) living with me the father as a family all the time with no violence whatsoever and with me being a good father to both my children … including 2 witnesses and a private detective affidavits and statements.
(Father’s Summary of Argument filed on 15 June 2022, paragraphs 3.12–3.13)
These are not allegations of a denial of natural justice.
Nonetheless, it is clear that a discretionary decision which is unreasonable, plainly unjust or plainly wrong may be reconsidered by an appellate court (House v The King (1936) 55 CLR 499; CDJ v VAJ (1998) 197 CLR 172). However, we are far from being satisfied that his Honour’s decision falls into that category. Even accepting, for the moment, the father’s submissions as noted above, they entirely ignore the unchallenged fact that the children have not spent any time with him for at least six years and are quite firmly opposed to seeing him.
This brings us to the essence of the father’s complaint, which is that, as the children’s wishes were untested, an appropriate exercise of discretion would have been to make orders for the children to spend supervised time with him and to attend family therapy. The proposal of supervision is a relevant consideration because, for example, an independent supervisor would be present to give an impartial view on the interaction between the children and the father. That consideration, however, must be weighed against the potential harm to the children from being forced to see the father against their wishes (as expressed so far).
These matters were expressly taken into account by the primary judge in his conclusion as follows:
110.The father has not spent time with the children for some years now. It would not be appropriate on the evidence before me and for the reasons identified above, to change that circumstance on an interim basis, especially having regard to the children’s firm and unequivocal views.
111. The father will have an opportunity at some future time to adduce evidence that may reassure the Court to disprove the mother’s allegations and reassure the Court that he does not present a risk to the children. He has not done so to date. If he is able to demonstrate that at some future time, then the Court will give further consideration as to whether or not it is in the children’s best interests to spend time with him.
112. The reality at this stage of the proceedings, having regard to the period that the children have not seen the father, is that evidence concerning the nature of each child’s relationship with the father will have a significant bearing on the Court’s assessment as to the prospect of the children having a meaningful relationship with him into the future. Again, these matters ought to be the subject of full exploration at a final hearing.
Given the age of the children and the nature of the hearing as an interim parenting application, we are quite unable to say that the conclusion was unreasonable or plainly wrong. It was clearly open on the evidence.
Did the primary judge take into account considerations that are false and blameless? (Ground 5)
As the father’s submissions pointed out, this is similar to Ground 1. The complaint is that the primary judge took into account considerations described by the father as false and baseless from the evidence of the mother and the “biased, baseless and negative Family Report” (Father’s Summary of Argument filed on 15 June 2022, paragraph 3.22). We have already dealt with the evidence of family violence.
The significant part of the Family Report relied upon by his Honour was the recording by the Family Report writer of the children’s wishes and views and her opinion that, given those views, it may be traumatic for the children to have to spend time with their father after such a long time with no contact.
His Honour was well aware that the opinion of the Family Report writer was challenged by the father. His Honour said:
106.At this stage, the [Family Report writer’s] opinions and evidence is unchallenged. I am minded to accept it for the purpose of the interlocutory hearing in light of her experience and expertise.
107.While I accept the father seeks to challenge the children’s views as recorded and opined about by [the Family Report writer], I am mindful of the likely impact of an order made against the strongly-held wishes of the children, including that it may have counter-productive outcomes for [the younger child’s] relationship with his father should he continue to resist spending time with his father.
This led to the conclusions just quoted.
His Honour was obliged to make a decision on the material before him, having regard to the constraints which we noted earlier. This is what his Honour did.
In essence, the father’s submissions on appeal are simply that his evidence should have been accepted, and all other evidence ignored. That is not the way interim hearings proceed and had his Honour done so, it is likely it would have led to error. This ground is not made out.
CONCLUSION AND COSTS
It follows that the appeal will be dismissed.
The appeal has been wholly unsuccessful. There is no reason why the father should not pay the mother’s costs fixed in the sum sought by her, namely $3,696, which Schedule 3 of the Rules sets out is already inclusive of GST.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge and Riethmuller. Associate:
Dated: 29 July 2022
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