PEAKE & COUSINS
[2017] FamCAFC 181
•6 September 2017
FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS | [2017] FamCAFC 181 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT DEPARTURE – ENFORCEMENT – Where the applicant seeks leave to appeal orders discharging all previous departure orders providing for the payment of financial support for the children and orders for enforcement – Where the facts in support of the application are inadequate and it is necessary to consider the proposed grounds of appeal to determine if leave should be granted – Where although there is a denial of procedural fairness the circumstances are such that an order for a new trial would be futile – Where the other proposed ground is incompetent – Where there is no merit in either of the proposed grounds of appeal – Application for leave to appeal dismissed. |
| FAMILY LAW – APPEAL – COSTS – Where the respondent did not appear at the hearing and no application for costs has been made – Pursuant to r 22.53 of the Family Law Rules 2004 (Cth) the respondent has 28 days in which to file an application for any legal costs incurred. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) r 22.53 |
| Bahonko v Sterjov (2008) 166 FCR 415 |
| APPLICANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| APPEAL NUMBER: | SOA | 103 | of | 2016 |
| DATE DELIVERED: | 6 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 5 April 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 November 2016 |
| LOWER COURT MNC: | [2016] FCCA 2856 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No Appearance |
Orders
The application for leave to appeal filed on 23 March 2017 be dismissed.
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 Peake & Cousins 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).
|
Appeal Number: SOA 103 of 2016
File Number: MLC 4941 of 2014
| Ms Peake |
Applicant
And
| Mr Cousins |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 March 2017 Ms Peake (“the mother”) filed an Amended Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal the orders made by Judge Bender on 9 November 2016. The application for leave and the appeal, if leave is granted, are opposed by Mr Cousins (“the father”).
The orders appealed discharged all previous departure orders, provided for the father to pay “one half of any medical and dental gap expenses for [the two children’s] treatment and procedures that the parties [had] agreed to prior to such treatment or procedures taking place”, with any such sums not to be credited against any child support assessment issued in relation to the two children, and otherwise dismissed the mother’s child support departure application. By way of enforcement the father was ordered to pay to the mother the sum of $527.16 as his share of various expenses, with him at liberty to claim rebates for those expenses via his private health insurance had the mother not already done so, and he then to pay to the mother half of any rebate received. Orders were also made for the parties to file written submissions in relation to costs.
At the directions hearing conducted by me on 3 March 2017 I made orders preparing the matter for hearing, including that the mother file and serve an Amended Notice of Appeal seeking leave to appeal, and amending her grounds of appeal such that they better indicate the alleged appealable errors made by the primary judge.
The mother failed to file her documents within the timeframe allowed in my orders of 3 March 2017, and at the hearing of the appeal on 5 April 2017, I gave her leave to rely on both her Amended Notice of Appeal filed on 23 March 2017, and the transcript of the proceedings before the primary judge on 1 September 2016. I also granted leave to the father to rely on his written summary of argument filed late on 4 April 2017.
The mother did not file a written summary of argument, and relied on the grounds of appeal set out in her Amended Notice of Appeal filed on 23 March 2017.
Due to work commitments the respondent did not appear at the hearing before me on 5 April 2017, and he relied solely on his written summary of argument.
Background
The mother was born overseas in 1973 and was aged 43 years at the time of the hearing before the primary judge. The father was born overseas in 1976 and was aged 40 years at the time of that hearing.
The mother is a former health professional who at the time of the hearing was studying another discipline full-time. It was “unclear” to the primary judge whether the mother had re-partnered.
The father was self-employed. He had remarried and he and his wife have twin sons who were born in 2016.
The parties commenced cohabitation in March 2005, married in 2005, separated in 2014 and divorced in 2015.
There are two children of the relationship, namely X born in 2008, and Y born in 2010 (“the children”).
At the time of separation the parties were living in the former matrimonial home in Town E. The mother ran her own business and the father was self-employed. It was the father’s evidence that he was the children’s primary caregiver, but the mother deposed to the father “earning and contributing very little to the family household prior to separation”. The child X was attending P School, and the child Y was attending kindergarten.
On 30 April 2014 the mother applied to the Child Support Agency for an assessment of child support.
On 6 June 2014 the father filed an Initiating Application seeking parenting and property settlement orders.
On 26 June 2014 the following consent order was made:
8.Pursuant to s116(1)(b) of the Child Support (Assessment) Act 1989 the [father] pay the following by way of financial support of the children and such sums not be credited against any Child Support Assessment issued in relation to the children:
(a) Half of all school fees, including excursions.
(b) Half of any gap medical and dental costs for the children.
(c) Half the gap cost of speech pathology costs for [Y].
(d) Half of the costs of new agreed school enrolment.
On 31 July 2014 the mother filed with the Child Support Agency a change of assessment application together with a substantial amount of supporting documentation. The Child Support Registrar declined to hear the application pursuant to s 98E of the Child Support (Assessment) Act 1989 (“the Assessment Act”) on the basis that it was too complex. On 18 November 2015 the mother filed another such application which was also declined by the Child Support Registrar for the same reasons.
On 28 October 2014, interim consent orders were made requiring the father to “reimburse the Mother for half of X’s third term 2014 P School fees”.
Final property settlement orders were made on 19 February 2015 which provided for the mother to pay the sum of $12,500 to the father, and that she retain the former matrimonial home. Notation “C” to those orders stated that “the [father] opposes the children attending P School for financial reasons”.
On 13 October 2015 final parenting and interim child support orders were made. The parenting orders provided for the children to live with the mother and spend time with the father during weekends, school holidays and on special occasions. The interim child support orders suspended order 8(a) of the 26 June 2014 orders (set out above), and provided for the mother to pay the school fees for the eldest child to attend P School prior to her departure application being determined, and in the event that her departure application was successful, she could then seek an order that the father reimburse her for one half of those school fees.
The mother’s departure application was listed for hearing on 24 June 2016.
On 13 April 2016 the mother notified the father that she had changed the children’s school from P School to S School in Suburb U.
The mother failed to comply with orders made to prepare the departure application for hearing on 24 June 2016, and on 24 June 2016 sought to rely on an affidavit filed and served by her on 23 June 2016, and which affidavit did not address the departure application. The matter was adjourned for hearing to 1 September 2016, and orders were made for the mother to file a further affidavit by 15 August 2016. The mother filed that affidavit on the day of the final hearing.
At the time of the final hearing the mother had placed the former matrimonial home on the market for sale, and it was the father’s evidence that she had re-partnered and intended moving to Melbourne. The mother did not confirm or deny the father’s evidence.
It was the father’s evidence that in addition to paying his assessed child support, he paid one half of the eldest child’s school fees at P School, totalling approximately $9,000, from term three in 2014 up until November 2015, when his child support payments increased from $220.33 to $1,197.33 per month.
The reasons for judgment of the primary judge
At [5] her Honour set out what orders the mother sought in her application for departure pursuant to s 118 of the Assessment Act, namely periodic child support of $150 per week per child commencing on 11 November 2014, to be CPI increased on 1 July 2016 and yearly thereafter, and by way of non-periodic child support half of all school fees, childcare fees, kindergarten fees, any costs associated with any new agreed school enrolment fees for either or both children, any medical or health related costs, and extracurricular educational, musical and sporting activities. In her enforcement application the mother sought payment of $712.16 being arrears allegedly due pursuant to the departure order made on 26 June 2014.
For the father’s part, he sought orders that all previous child support departure orders be discharged, and that he contribute half of any gap medical and dental costs provided he was consulted and agreed to such costs before they were incurred, and otherwise the mother’s applications, including her application for enforcement, be dismissed.
Next, her Honour turned to consider the law, setting out ss 117(1) and (2) of the Assessment Act and referring to Hides & Hatton (1997) FLC 92-759.
Addressing each of the matters raised by the mother in relation to s 117(2) of the Assessment Act, her Honour found as follows:
a)117(2)(a)(ii) – special needs of any other child or person that the parent has a duty to maintain – ground for departure not made out because the claimed costs do not relate to “any other child or another person”.
b)117(2)(a)(iii)(A) and (B) – commitments of the parent necessary to enable the parent to support himself or herself or any other child or person – ground for departure not made out because:
·The mother is an undischarged bankrupt and her “liabilities [are] managed through [the bankruptcy] process” (at [52]).
·The amounts claimed by the mother as the reasonable expenditure to support herself and the children “overstate her necessary commitments” (at [53]).
·The mother’s “current circumstances of where she is living, with whom she is living and who is responsible for the payment of her support is not before the Court” (at [54]).
·The mother put “no evidence before the Court as to why she is not able to undertake some form of paid employment” (at [55]).
·The father’s “income is only just sufficient to meet his reasonable living expenses” (at [56]).
c)117(2)(a)(iv) – high costs involved in enabling a parent to spend time with, or communicate with any child or another person that the parent has a duty to maintain – ground for departure not made out because:
·The father “asserts that the mother has now moved or will shortly move to Melbourne and therefore neither party will incur high travel expenses when [the children] spend time with [the father]” (at [60]).
·“Both parties have shared the costs of travelling in order to enable [the children] to spend time with the Father” (at [61]).
·“The Mother places no evidence before the Court as to why she needs a pre-paid phone for [the children] to communicate with the Father” (at [62]).
d)117(2)(b)(ia) – the costs of maintaining the child are significantly affected because of special needs of the child – ground for departure not made out because:
·“Extra-curricular activities do not fall into the category of special circumstance” (at [69]).
·The father “has always agreed to pay half of all agreed medical and like gap expenses for [the children] … in circumstances where [they] are covered by the private health insurance taken out by [the father and his new wife]” (at [67]).
e)117(2)(b)(ii) – the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in a manner expected by his or her parents – ground for departure not made out because:
·The father has been “consistent in his belief that it was not financially viable for X to continue to attend [P School] or for Y to commence at [P School] once the parties separated” (at [75]).
·“[A]t no time did [the father] support ongoing private school education for [the children]” (at [76]).
·“The Mother’s decision to remove [the children] from [P School] and enrol them in [S School] in [Town E] was a unilateral decision made by her without any consultation with the Father despite there being orders for the parties to have equal shared parental responsibility” (at [77]).
·“In these circumstances [the children] are not being cared for, educated or trained in the manner that was expected by both their parents and as such the cost of school fees are not the responsibility of both parents” (at [78]).
f)117(2)(c)(ia) and (ib) – in the special circumstances of this case, administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, property and financial resources of either parent and/or because of the earning capacity of either parent – ground of departure not made out because:
·Although the father’s income had increased, and the child support paid by him would have been higher if based on his actual income, given that he paid school fees of $9,000, he had only paid $7,558 less than he would have paid if child support had been assessed on his actual income.
·“The earning capacity for the Father seems well established at his current level of earnings and there is no evidence before the court that would indicate that there is an expectation that his earnings will increase dramatically in the future” (at [89]).
Her Honour then recorded each of the factors raised by parties under s 117(4) of the Assessment Act, noting at [115] that neither party made submissions in relation to s 117(5) of the Assessment Act.
In conclusion her Honour found that “the Mother [had] not satisfied any of the grounds which would persuade a Court to make an order in the terms sought by her and as such her application for a departure order in relation to periodic payments is dismissed” (at [118]).
Her Honour then referred again to the circumstance that for the period 1 July 2014 to 30 November 2015 the father paid approximately $7,500 less to the mother than he should have done, based on his income for that period, and her Honour indicated that therefore the court must “consider whether there should be a departure order made for that period that reflects the income earned by [the father] for this period only” (at [119]).
Her Honour noted that the decision whether to make a departure order is a discretionary one and concluded as follows:
123.If the Court were to exercise its discretion and make a departure order for the period 1 July 2014 to 1 December 2015, it would have the effect of creating a liability for the Father in circumstances where he has neither the financial resources nor the income stream to meet that liability. This is particularly so given his responsibilities to his new family and the proper level of child support he is now paying for [X] and [Y].
124.In these circumstances, I am satisfied that it is not just and equitable that a departure order be made for the period 1 July 2014 to 1 December 2015.
In relation to that part of the mother’s application wherein she sought orders that the father pay non-periodic child support her Honour found at [127] that “[t]here [was] nothing in the Mother’s application … that meets either the criteria for special circumstances or any of the factors set out under section 117(2)”. And at [128] her Honour dismissed this part of the mother’s application, save for the payments agreed to by the father, namely “half of medical and dental gap expenses for treatments and procedures undertaken by [the children] that he [had] agreed to in advance” (at [126]).
In relation to the mother’s application for enforcement of outstanding payments owed by the father to her pursuant to paragraph 8 of the consent orders made on 26 June 2014, and set out above, her Honour found on the evidence and on the correct interpretation of the order, that the father owed the mother a total amount of $527.16.
Leave to appeal
Section 102A(1) of the Assessment Act imposes the requirement for leave to appeal orders made pursuant to that Act. However, that section does not prescribe the requirements to be met for that leave to be granted. The discretion to grant leave is thus unqualified and unfettered.
That said, authority suggests that subject to a less restrictive approach than might apply in respect of leave to appeal against interlocutory decrees being appropriate, the same principles which apply to those applications should also apply to applications for leave to appeal under s 102A.
What those principles should be when considering s 102A were addressed by the Full Court in Bass & Bass and Anor [2016] FamCAFC 64, and it is convenient to repeat what their Honours there said, as follows:
86.That noted, principles or guidelines have developed in the authorities governing the grant of leave to appeal in analogous statutory contexts. These authorities were discussed in some detail by the Full Court of this Court in Jess and Ors & Jess and Ors (2014) FLC 93-620 (“Jess and Jess”) and we need not repeat that discussion. The authorities generally deal with interlocutory decisions and highlight the distinction between decisions which affect substantive rights of parties (effectively being final orders) and those which go to matters of practice and procedure only. References in the authorities to a “tight rein” being exercised on the grant of leave refer predominantly to the latter.
87.We do not interpret anything said in Jess and Jess, nor recently by a differently constituted Full Court in Medlow & Medlow (2016) FLC 93-692, in discussing the discretion to grant leave to appeal in the context of s 94AA of the Act, as prescribing a test of universal application to be rigidly applied. The adoption of a prescriptive approach, even in relation to appellate courts reviewing decisions pertaining to practice and procedure, was considered by the High Court to be “unnecessary and indeed unwise” in Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170. Their Honours (Gibbs CJ, Aickin, Wilson and Brennan JJ said at p 177):
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. ; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.):
“… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
See also, Brambles Holdings Ltd. v. Trade Practices Commission; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.
(Footnotes omitted)
Ultimately, the Full Court there looked to whether significant issues of importance relevant to the substantive legal rights of the parties involved were raised in the appeal and warranted the grant of appeal. I will adopt the same approach in this case.
In her Amended Notice of Appeal the mother relied on the following in support of her application for leave to appeal:
1.The Final Hearing was heard on 1 September 2016. [Mr Cousins]
e-filed an Affidavit 24 October 2016 on the Court Portal and also emailed it to Judge’s Chambers while the Judge was in reserved deliberation of her judgments and Final court Orders.I then emailed to the Judge’s Associate, and also the Court Registry on the 24 October 2016 to complain of unfairness and improper procedure of evidence. The court engrossed inadmissible affidavit remained on the court portal file for 3 weeks.
In her discretional final judgements (sic), decisions and Court Orders delivered on 9 November 2016, Her Honour then referred extensively to new inadmissible allegations expressed in this specific inadmissible affidavit. This would amount to substantial errors of procedures with regards to evidence, injustice and unfairness to the Appellant. And resulted in unfairness of discretional judgement (sic) by Her Honours (sic).
2.Her Honours (sic) had agreed in her Judgement (sic) (Paragraph 84) that the Father was owing in the correct amount of child support but she had used unfair and incorrect discretion due to procedural errors and inadmissible evidence.
As can be appreciated, this is less than helpful. The first set of “facts” do nothing more than set out the complaint which appears to be raised in Ground 1 of the proposed grounds of appeal. With the second set of “facts” it is difficult to understand what specific issue the mother is raising. However, doing the best that I can, it would seem to relate to the issue of the father’s under payment of child support between 1 July 2014 and 1 December 2015, and that is raised in Ground 2 of the proposed grounds of appeal.
Given this, and being as generous as I can, I will proceed on the basis that if there is any merit in proposed Grounds 1, and/or 2, then leave to appeal should be granted. Thus, I will now consider whether these proposed grounds have any merit.
Proposed Ground 1
Judicial Procedural errors and unfairness in the Judge’s reading and referring in her discretional judgement (sic) and Final Orders of new allegations from an inadmissible affidavit that was filed by Respondent and court engrossed on 24 October 2016 after the Final Hearing was heard on 1 September 2016 and during the period of reserved deliberation of court judgement (sic).
Although it is not entirely clear what the mother’s complaint is, it would seem to be one of a denial of procedural fairness. She says that the primary judge referred to and took into account in reaching her decision the contents of an affidavit filed by the father, after her Honour had reserved her judgment and before delivering the same, and which affidavit the mother says that she had no opportunity to respond to.
It is plain that the primary judge both read the affidavit and referred to its contents in her reasons for judgment, despite the request by the mother that the affidavit be “struck out”.
The affidavit was affirmed by the father on 21 October 2016, and then sent by email to the primary judge’s associate, and to the mother. Apparently the mother immediately contacted the primary judge’s associate and requested that the affidavit be “struck out”.
The affidavit was received for filing by the court and sealed on 24 October 2016. At some point though the filing of that affidavit was “voided” by the court, and the affidavit was placed in a sealed envelope in the correspondence section of the appeal file.
The affidavit was quite brief, and it is helpful to set out its contents in full as follows:
1.That I am the Respondent Husband in the proceedings heard on 01 September 2016.
2.Significant events have occurred since the last court date that the Court and Her Honour should be made aware for consideration of her judgment in the listed matter.
3.[Ms Peake] has sold the matrimonial home in [E]. The amount of sale is unknown to me.
4.[Ms Peake] has moved to Melbourne in mid-September and is now located at the following address: [O Street, K]. This move took place just 3 weeks after Ms Peake stated to the Family Court that she was quite happy to stay in [E] and had no plans to relocate in the future to Melbourne.
5.I understand that [Ms Peake] is living in the same dwelling as a boyfriend [Mr N]. This is a different person than who was identified in a previous affidavit [Mr B].
6.I understand that the children have slept in the same bed as this person. I am unaware of the current sleeping arrangements in the new home, but am greatly concerned.
7.[Ms Peake] has moved the children, [X] and [Y], to [K] Primary School starting in term 4.
8.The move to a new school was again made without my written consent as required by Court Orders. The move was again made completely without my knowledge. I was alerted of the change of schools as well as the move to Melbourne on the last day of term 3, the day that I was scheduled to pick up the children for the school break.
9.[Ms Peake] continues to deny my video / phone calls on Wednesday nights.
10. [Ms Peake] continues to harass me through email and messages.
In [36] of her Honour’s reasons for judgment, her Honour recorded the affidavits relied on by the father and included the subject affidavit, although she incorrectly identified it as being affirmed on 31 October 2014.
In [54], [60], and [77] her Honour referred to facts, many of which could only have come from that affidavit. In [54] her Honour said this:
It would also appear that the Mother has recently returned to Melbourne and the current circumstances of where she is living, with whom she is living and who is responsible for the payment of her support is not before the Court.
In [60] her Honour said this:
The Father further asserts that the Mother has now moved or will shortly move to Melbourne and therefore neither party will incur high travel expenses when [X] and [Y] spend time with him.
And in [77] her Honour said this:
The Mother’s decision to remove [X] and [Y] from [P School] and enrol them in [S School] in [E] was a unilateral decision made by her without any consultation with the Father despite there being orders for the parties to have equal shared parental responsibility. Assuming the Mother has again changed or will change [X] and [Y’s] school when she moves to Melbourne, there has to be a genuine concern she will again unilaterally, and in breach of the Court orders, choose the school [X] and [Y] will attend.
The mother says that she did not have the opportunity to respond to the father’s affidavit, but that is simply incorrect. As referred to above, the father sent the affidavit to the mother, and she contacted the associate of the primary judge requesting that it be “struck out”. It was open to the mother at that stage to look to file a responding affidavit if she considered it necessary. Thus, the denial of procedural fairness is not failing to provide the mother with an opportunity to respond to that affidavit at that time. Instead, on the assumption that the mother thought that by requesting that the affidavit be “struck out” the primary judge would not take it into account, the denial of procedural fairness would seem to arise once the primary judge subsequently read the affidavit and took it into account. In other words, Her Honour, before doing that should have given the mother the opportunity to respond.
However, such a denial of procedural fairness does not necessarily translate into the application for leave to appeal being granted, the appeal being allowed, and the mother being entitled to a new trial. In Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145, the High Court said this:
That general principle [entitlement to a fair trial] is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.
As can be seen there can be a difference depending on whether the opportunity denied was to make a submission on the law, or to make a submission on an issue of fact. In the latter circumstance, it is more difficult to find a new trial is not warranted.
Here, the denial was a denial of the opportunity ultimately to respond to issues of fact deposed to by the father. However, two things about that. First, in the father’s affidavit filed on 24 June 2016, and which was properly before her Honour for the purposes of the hearing, the father raised the prospect of the mother moving to Melbourne and changing the children’s school. Indeed, he referred to the mother’s own evidence given on 10 February 2016 that she had re-partnered and was in a de facto relationship, that her de facto partner lived in Melbourne, and that they alternated spending time in each other’s homes (at [22]). This issue was taken up during the hearing before the primary judge, and the following exchange occurred:
HER HONOUR: 2768. And you’re very pleased with how they’re going at [S School], and you intend to leave them there and at this point in time, your evidence to me is that you’re not intending to relocate to Melbourne or take them out of that school.
[MS PEAKE]: It really depends. My situation is a bit unstable at the moment. But I’m happy with the school.
HER HONOUR: So when [Mr Cousins] says in his affidavit there is – he believes there is a possibility that you might relocate to Melbourne, that’s not outside the bounds of what might occur down the track. Is that what you’re saying?
[MS PEAKE]: I’m from Melbourne.
HER HONOUR: I’m not binding you to that. I mean, it’s just something, of course, you will need to discuss with [Mr Cousins] before you do it.
[MS PEAKE]: I do understand, your Honour.
HER HONOUR: And if that’s going to occur you will need to discuss with him an appropriate choice of school, and you know that.
[MS PEAKE]: Yes, your Honour.
HER HONOUR: And you both have to be in agreement as to that school. I’m not saying that [Mr Cousins] is necessarily going to be upset if the boys are closer than they are now, but you need to discuss that first.
[MS PEAKE]: I do understand, your Honour. I do have family in Melbourne as well, though – as well.
HER HONOUR: Look, life moves on. I’m just trying to clarify for my own sake, if you were to do that, would it be your expectation they would remain in some form of Catholic education?
[MS PEAKE]: Yes, your Honour.
(Transcript 1.9.2016, page 31, lines 3 – 38)
Secondly, as conceded by the mother during the hearing of the appeal, the relevant facts in the affidavit referred to by her Honour were accurate. In other words, the mother did move to Melbourne, and did change the children’s school without the written consent of the father, as required by previous court orders. I also note that her Honour did not take on board the claims by the father as to the circumstances of where the mother was living and with whom she was living. As can be seen from [54] her Honour simply recorded that those details were not before the court. Similarly, her Honour had no regard to the claim in relation to the children’s sleeping arrangements, or the mother’s position in relation to “video / phone calls”, or the allegations of harassment through emails and messages.
Thus, to adopt the words of the High Court, it would be futile to order a new trial.
In the circumstances, there is no merit in the proposed ground of appeal.
Proposed Ground 2
a. Bias, subjective and prejudicial treatments by Judge Bender towards the Respondent and against the Applicant throught (sic) the Proceedings.
b. Legal and Procedural unfairness and racial bias against the Applicant by Judge Bender throughout the Proceedings.
c. Legal and Procedural errors made by Judge Bender with regards to Judiciary and Court Rules and Procedures and Obligations for Full and Frank Disclosure by the Respondent. Failure to enforce Court Orders for Full and Frank Disclosure Obligations by the Repondent (sic).
d. Legal and Procedural errors in the use by Judge Bender of the Respondent’s inadmissible affidavit (filed 24th October 2016) and allegations after the closing of the Final Hearing (defended) on 1st September 2016, in Judge Bender’s Judicial decisions for her reserved judgement (sic). She had Orders to void the affidavit on the court Registry but referred to it in her reasons.
e. Judge Bender did not allow cross examination of evidence in chief of the Respondent by the Applicant in the Final Hearing (defended) on the 1st September 2016.
f. Judge Bender did not allow a request by the Applicant for an earlier Hearing to address the Objection of a Financial Subpoena for the Respondent’s bank account and she then failed to address the Objection during the Final Hearing on 1st September 2016. Therefore the Applicant was biasedly prejudiced and unable to access the details from the Subpoena.
g. Errors in facts for actual dates of Court Orders by Judge Bender within her decisions and calculation for arrears enforcement eg. 26th June 2014 Court Order for half of medical fees. Psychologist receipt 24th October 2014. Judge Bender stated in error that the Respondent was not liable for this arrear as the treatment on 24th October 2014 predated the Court Order of 26th June 2014.
Errors in facts as stated by Judge Bender that the Respondent did not consent to the enrolment of Y at I in 2016. Judge Bender did not take into account that the Respondent had willingly signed for the enrolment of Y in 2015 to commence Prep in 2016 which was a part of the evidence in chief of the Applicant.
Errors in facts of reasons for previous adjournement (sic) of Hearings as was incorrectly attributed by Judge Bender.
h. Judge Bender used irrelevant allegations by the Respondent and took them as facts with regards to the Applicant’s personal relationship or alleged new partnering to base child support determination, allegations of “unilateral” decisions by the Applicant to relocate or schooling, Property settlement issues, and other allegations from the Parenting Custody Proceedings that were settled by the Respondent on his Initiating Application for Full Custody, on the 13th October 2015, without cross examination of the evidence in chief and allegations of the Respondent.
Errors of Law with regards to the relevance of the Applicant’s personal romantic circumstances in the application by Judge Bender for decisions on child support determination.
j. On the 13th October 2015, during a 3 days (sic) Final Hearing for Parenting Orders (12 – 14 October 2015), Judge Bender Prejudicially threatened the Applicant and her Counsel Barrister with $150K Cost Order if the Applicant did not withdraw her child support Application that day, (prior to any Direction Hearing or presentation of evidence in chief), due to the fact that Judge Bender had a personal engagement that she had wanted to leave by 2pm that day and did not wanted (sic) to hear the case. The Applicant had firmly refused to withdraw her child support aplication (sic) despite Judge Bender’s threats in her fight for her children’s rights to be adequately supported by both parents. Judge Bender was then forced to set a Direction Hearing for child support.
Judge Bender’s prejudicial and biased attitude against the Applicant on the 13th October 2015, had already forecasted and projected her final reserved Judgement (sic) of 9th November 2016.
k. Judge Bender had refused to enforce her own Orders for Full and Frank Disclosure of Financial Documents against the Respondent despite her cautioning from the Bench, of the Respondent Father’s Solicitor to do so at the Hearing of the 19th December 2014.
l. Judge Bender was racially baised (sic) against the Applicant’s Ethnicity during these Proceedings. She had implied on multiple occasions that the Applicant, despite being a Political … Refugee and a Naturalized Australian with only Australian Citizenship, still had the option to abduct the children and flee [overseas].
The Respondent Father being a dual Citizen, born [overseas], was able to applied (sic) for an abridged application due to his abduction allegations of the Applicant Mother back to [overseas] where the Applicant did not have citizenship or visas.
m. Judge Bender had given orders to the Court Registry to void the affidavit of the Respondent which was filed on 24th October 2016 (court sealed and still on Registry Data Base but not accessible to Applicant). However her Honoured (sic) in her decisions referred extensively to the inadmissible affidavit and its allegations from this affidavit of 24th October 2016, (which was filed after the Final Hearing on 1st September 2016). This is a complete error in legal procedures and rules of court, Proceedings and Evidence Rules and constitutes an absolute Procedural unfairness towards the Applicant. Without cross examination of the evidence in chief.
n. Still on database:- The inadmissible Affidavit (court sealed) filed by Respondent on 24th October 2016 + emailed to Judge directly.
This is a ground that is plainly incompetent. It was the only proposed ground of appeal set out in the initial Notice of Appeal, and at the directions hearing held on 3 March 2017, I raised this with the mother and ordered her to file an Amended Notice of Appeal seeking leave to appeal, and setting out the facts in support of such an application, neither of which she had done, but importantly, amending the grounds of appeal such that they better indicated the alleged appealable errors relied on by her.
As referred to above, the mother filed an Amended Notice of Appeal in which she sought leave to appeal and set out what purports to be the facts in support of that application, but with the grounds of appeal she merely added Ground 1 and left in place the old ground as Ground 2, without amending it in any way.
This ground remains incompetent, and I do not propose to waste this court’s time in trawling through the 14 paragraphs in an attempt to construct a properly pleaded allegation of an appealable error by the trial judge. In Bahonko v Sterjov (2008) 166 FCR 415 at [3], the Full Court of the Federal Court of Australia said:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. … This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. 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.
(Citations omitted)
Many of the paragraphs are nothing more than general assertions without any specificity whatsoever, making them impossible to address (for example see (a), (b), (c), (i)). Other paragraphs are just a jumble of complaints which are impossible to untangle (for example see (g) and (h)). There are also bald allegations of bias, prejudicial treatment, and even racial bias (for example see (a), (b), and (l)), but no proper foundation is laid for these allegations, and they were not raised during the hearing. Further, there are a number of allegations that the primary judge failed to act, for example in relation to disclosure and objections to subpoenas, but the record does not reveal that the mother raised these matters with the primary judge either by way of written or oral application, and that the primary judge refused to deal with any such application (for example see (c) and (f)).
I also note that in some circumstances, the written summary of argument can overcome failings in the grounds of appeal, but here the mother failed to comply with the order for her to file such a summary.
Next, I observe that paragraphs (d), (m) and (n) relate to the issue of the father’s affidavit which is the subject of proposed Ground 1, and there is no basis to revisit that issue.
Finally, I need to specifically address one further complaint that the mother makes, and it is that contained in paragraph (e).
A reading of the transcript of the hearing before the primary judge demonstrates the inaccuracy of that complaint. After her Honour legitimately chastised the mother for once again failing to file documents on time, and failing to provide the father with sufficient time to consider those documents, and her Honour raising the prospect of an adjournment, her Honour said this:
HER HONOUR: You know what? I’m just going to hear this matter, [Mr Cousins]. I don’t need to hear any evidence. I just want oral submissions from both as to whether there should or shouldn’t be, unless either of you want to ask the other one any questions. I have to let you know I am rising at 12 o’clock. I won’t be back till 2.15, for personal reasons, so let’s get stuck in. Do either of you have questions you want to put to the other? You can. I’m not stopping you. It’s fine: it’s your case.
(Transcript 1.9.2016, page 4, lines 18 – 23)
Thereafter there was no request by the mother to ask any questions of the father.
I need say no more, except to record that not only is there no merit in the complaint in paragraph (e), but the entirety of proposed Ground 2 cannot succeed.
Conclusion
Having determined that there is no merit in either of the proposed grounds of appeal, leave to appeal is plainly not warranted, and I will be dismissing that application.
I also note that no issue of costs arises, given that the father did not appear at the hearing, and no application for costs has been made by him. However, if he does have any legal costs that he would seek to claim, then under the Family Law Rules 2004 (Cth), he has 28 days in which to file an application to that effect (r 22.53).
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 September 2017.
Associate:
Date: 6 September 2017
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