Peda and Feaster and Anor
[2019] FamCAFC 21
•15 February 2019
FAMILY COURT OF AUSTRALIA
| PEDA & FEASTER AND ANOR | [2019] FamCAFC 21 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father filed a Notice of Appeal on 2 October 2018 – Where the father failed to file a draft index to the appeal books within the prescribed timeframe – Where the father’s appeal was deemed abandoned – Where the father’s grounds of appeal were largely incomprehensible and misguided – Where there were serious allegations and findings of abuse perpetrated by the father against all members of the family – Consideration of Joshua v Joshua (1997) FLC 92-767 – Where there was no substantial issue to be raised on appeal – Where the father asserted impecuniosity and being self-represented as explanation for delay – Where neither are satisfactory explanations – Where the Court is not satisfied of requirements to grant an application to reinstate – Application dismissed. |
| Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CC(3)(i), 60CC(3)(m), 69ZN, 69ZX(2)(i), 117(2) Family Law Rules 2004 (Cth) r 22.13(3) |
| Bant & Clayton [2014] FamCAFC 108 Burton & Churchin (2013) FLC 93-561; [2013] FamCAFC 180 Cooper & Oakley (No. 2) [2012] FamCAFC 187 Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Jackamarra (an infant) v Krakouer (1998) 195 CLR 516; [1998] HCA 27 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Molloy & Molloy (2016) FLC 93-754; [2016] FamCAFC 264 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Oram & Lambert [2019] FamCAFC 4 Tabb & Tabb [2017] FamCAFC 169 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | Mr Peda |
| FIRST RESPONDENT: | Ms Feaster |
| SECOND RESPONDENT: | Ms Peda |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Geysen, CNG Law |
| FILE NUMBER: | BRC | 1644 | of | 2017 |
| APPEAL NUMBER: | NOA | 83 | of | 2018 |
| DATE DELIVERED: | 15 February 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 16 January 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 September 2018 |
| LOWER COURT MNC: | [2018] FCCA 2417 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| FOR THE FIRST RESPONDENT: | In person |
| FOR THE SECOND RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Taylor |
| INDEPENDENT CHILDREN’S LAWYER | Ms Geysen, CNG Law |
IT IS ORDERED THAT
The father be granted leave to rely upon the affidavit filed 28 December 2018.
The Application in an Appeal filed by the father on 5 November 2018 for reinstatement of the appeal be dismissed.
The father pay the Independent Children’s Lawyer’s costs of and incidental to the Application in an Appeal fixed in the sum of $4,000.00 within 90 days of the date of this order.
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 Peda & Feaster and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 83 of 2018
File Number: BRC 1644 of 2017
| Mr Peda |
Applicant
And
| Ms Feaster |
First Respondent
And
Ms Peda
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
The father of a four-year-old child, X, makes an application to reinstate his appeal deemed abandoned by reason of his failure to file a draft index to the appeal books within the prescribed timeframe.[1]
[1] Pursuant to r 22.13(3) of the Family Law Rules 2004 (Cth) (“the Rules”).
The proposed appeal relates to parenting orders made by Judge Vasta on 3 September 2018 (and amended on 4 September 2018). The broad effect of those orders is that:
a)The mother is to have sole parental responsibility for X;
b)X is to live with her; and
c)The father is to spend no time with X nor have any communication with him.
The paternal grandmother was also a party to those proceedings. His Honour dismissed her application to have the child spend time with her. She is neither a proposed appellant nor has she participated otherwise in the father’s proposed appeal or this application.
The father filed his Notice of Appeal within time on 2 October 2018 (although not serving the notice upon the mother and the Independent Children’s Lawyer until 16 October 2018).
The father was sent a letter on 5 October 2018 alerting him to the need to file a draft index to the appeal books. He was then sent another letter dated 31 October 2018 alerting him that his appeal had been deemed abandoned due to his failure to file the draft index within the prescribed timeframe, being 30 October 2018. The father did not reply to either of those letters but then filed this application to reinstate his appeal on 5 November 2018. The application was filed within a week of his draft index being due.
The father represented himself before his Honour and represents himself in these proceedings.
The Relevant Factual Context
The parties’ separation occurred on 25 November 2015. At that time the child X was 14 months of age. The father spent no time with X until September 2017, after which there were 11 one-hour visits over a three month period.
Those visits occurred at a contact centre. Evidence before his Honour from representatives of the contact centre included reference to the father breaching the service agreement on two separate occasions, first, by bringing a knife into the centre and, on the second occasion, by bringing a hammer to the centre. The contact centre ceased the father’s visits via a letter dated 11 January 2018, citing their opinion that the visits were no longer in X’s best interests.
The father has spent no time with the child since those visits concluded in January 2018.
The proceedings before his Honour were marked by allegations, and findings, of significant violence perpetrated by the father.
An illustration of the nature and extent of the violence alleged by the mother can be seen in her Notice of Risk filed 12 April 2017 which runs to over 60 paragraphs and details abuse inflicted by the father upon all members of the household. It also outlines many occasions upon which the father has killed animals, often inhumanely, in front of the children. The mother's sworn evidence in her trial affidavit is to similar effect.
The mother had a child, Y, of a previous relationship, who, tragically, died in a motor vehicle accident in 2018. His Honour made findings of significant violence perpetrated by the father upon Y during the time he resided with the father and mother. The mother annexed photographs of Y taken over Christmas in 2014. Large bruises are clear from the photographs. The father admitted causing those bruises but said he inflicted them in the child’s best interests.
The father was convicted of assaulting Y in late 2016. He says he is appealing that decision.
In 2017, the father was charged with causing grievous bodily harm to a person unconnected with the relationship. He says he is defending that charge.
The Relevant Legal Context
The principles relevant to an application of this type have been referred to on numerous occasions and need not be repeated here. Those principles derive principally from what was said by McHugh J in Gallo v Dawson[2] and what was said subsequently by Lindenmayer J in Joshua v Joshua.[3]
[2] (1990) 93 ALR 479 (“Gallo”).
[3] (1997) FLC 92-767 (“Joshua”). See also, for example, Molloy & Molloy (2016) FLC 93-754 and Tabb & Tabb [2017] FamCAFC 169.
In Joshua, Lindenmayer J held that an application “must fail” if the applicant has not established that “there is a substantial issue to be raised on appeal” and that if that issue is satisfied, only then do a number of other considerations become relevant to the exercise of discretion.[4] Those other considerations include the extent of delay; the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from that delay which cannot be compensated by costs; and, finally, the desirability in the public interest that there be an end to litigation.[5]
[4]Joshua at 84,440.
[5]Joshua at 84,440. See also Bant & Clayton [2014] FamCAFC 108 (“Bant”) at [10] – [11].
Later Full Courts have said that the considerations outlined by Lindenmayer J “are not to be treated as legislative directions”; ultimately the grant of an extension is a matter of judicial discretion, “the fundamental issue” being whether granting the application will enable the Court “to do justice between the parties”.[6] In that respect, the Rules of Court which fix the time for doing a task associated within an appeal should “not become instruments of injustice”.[7]
[6] Bant at [10] – [11]. See also Tormsen & Tormsen (1993) FLC 92-392 at 80,017-8.
[7] Gallo, above at 480. See also Jackamarra (an infant) v Krakouer (1998) 195 CLR 516 per Gummow, Hayne JJ.
The Prospective Grounds Of Appeal And Their Merit
The father’s Notice of Appeal contains eight paragraphs, some of which are, with all due respect, largely incomprehensible. Counsel for the Independent Children’s Lawyer has helpfully sought to reframe what is said there into recognisable grounds of appeal while seeking to maintain what was said in substance by the father.
As reframed, the asserted errors are:
i.That his Honour in making a “no contact order” has denied the child having a meaningful relationship with the father which is in and of itself an appellable error (paragragh1).
ii.That the father was not afforded procedural fairness in that he was prevented by the judge from cross examining the mother and this caused “bias in the trial” and she was “inadequately cross-examined” (paragraphs 2 and 3);
iii.That the trial judge, was in error in the way he dealt with and the weight he attached to the father’s treatment of the child [Y], in finding that the applicant father’s contrition in respect of his treatment of [Y] was a “grudging concession” and further misconstrued the father’s reasons for adducing evidence as to the character and behavior of the child [Y] (paragraphs 4 ,5 and 6)
iv.That the court did not have regard or placed insufficient weight non [sic] relevant evidence, that being that the mother had admitted to [the family report writer] that she was aware of the discipline being employed by the father on the child [Y] (paragraph 7).
v. That the court did not have regard or place sufficient weight on relevant evidence, that being that he has a child aged 19 with whom he has a meaningful relationship (paragraph 8).
(As per original)
In its un-particularised form, Ground 1 is not a ground of appeal at all; no specific appealable error is identified. I have taken what is said there to be a conclusion said to flow from other asserted errors.
No Cross-Examination
The mother contends that the father was not precluded from cross-examining her.
Section 69ZX(2)(i) of the Family Law Act 1975 (Cth) (“the Act”) specifically empowers the Court to “limit… or not allow…, cross-examination of a particular witness”. The power is to be exercised within a broad discretion and is to be exercised so as to give effect to the mandatory principles for conducting child‑related proceedings set out in s 69ZN.[8]
[8] In particular, see s 69ZN(1) of the Act. The provisions of the Family Law Amendment (Family Violence and Cross-examination of Parties) Act 2018 (Cth) were not in force at the time of the proceedings before his Honour.
Sub-sections (2) through (7) of s 69ZN set out the principles which a court must apply including, relevantly:
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
…
(b) the parties to the proceedings against family violence.
…
Principle 5
(7) 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.
It can be seen then that the Act gives wide scope to judges in the conduct of proceedings including, specifically, whether cross-examination will be permitted at all and, if so, its length, content and the means by which it might occur. However, a decision about all of those matters requires the exercise of a discretion directed to the individual circumstances and needs of a case. The discretion must, as it seems to me, include a consideration of the impact upon the rules of natural justice and the fair hearing rule in particular.
That being so, the question in this case becomes whether there is merit in a prospective appeal, a ground of which apparently challenges the exercise of the discretion just referred to.
It is not possible to discern any assertion or recognised discretionary error from the grounds as pleaded or reformulated, or from any argument advanced by the father.
Moreover, the argument by the father ignores the fact that he agreed before his Honour to counsel for the Independent Children’s Lawyer conducting the cross‑examination of the mother and did not at the conclusion of her cross‑examination ask that any other matters be canvassed; did not otherwise object to that cross-examination; and indicated in open Court that he had no questions.
The Treatment of Child Y
In my view, this challenge misconstrues the central thrust of his Honour’s findings which are in fact directed to the nature and degree of the father’s insight into his actions towards Y rather than his level of contrition.
The father’s prospective ground faces the considerable difficulty that his interpretation of his Honour’s reasons fails to take account of those parts of the reasons that refer to the father’s lack of insight in respect of his behaviours towards Y and, more generally, the father’s attempts to “blame” the mother for actions perpetrated by him – a matter directly relevant to the “responsibilities of parenthood”[9] among other relevant considerations.
[9] Section 60CC(3)(i) of the Act.
An example is the father’s submission at paragraph 5 of his Notice of Appeal with respect to [176] of his Honour’s reasons:
…The [judge] has misunderstood the reasoning behind the father’s inclusion of [Y’s] behaviour and how that behaviour related to the mother’s parenting. The father only sought to highlight that the mother’s response to her troubled teenager, [Y], was to remove [Y] from the family home, effetively forcing [Y] into homlessness and how the mother’s reaction to [Y] is indicitive of the mother’s capacity to parent.
(Errors as per original) (Emphasis added)
I am unable to see any real merit in a ground or argument that seeks to persuade the Full Court that there was any “wrong inference of fact” or that his Honour “failed to draw a proper inference of fact” by reference to the specific passages highlighted by the father or more broadly by reference to his Honour’s reasons.
I agree with the submission by counsel for the Independent Children’s Lawyer that the father would face almost insuperable difficulties in persuading a Full Court that it was not open to his Honour to find (as his Honour did within the broader discussion at [76] to [178] of the reasons) that the father had sought to “blacken the name and character of [Y]” (at [176]) and to present him as someone who “‘deserved’ the punishment meted out by the father” (at [178]).
There was ample, indeed overwhelming, evidence before his Honour that the father’s treatment of Y was deserving of the findings made.
Failure to Consider Relevant Evidence
This ground, in terms, establishes the very findings made by his Honour just discussed. The ground and argument appears to suggest error because, despite his Honour making findings that the father’s behaviour was entirely inconsistent with the primary responsibility of a parent to prevent a child being harmed and otherwise inconsistent with the responsibilities of parenthood,[10] an adverse finding should have been made against the mother because she knew about that behaviour.
[10] Respectively, s 60CC(2)(b) and (3)(i). Matters also plainly relevant to parties who are exercising parental responsibility toward a child who is not theirs: s 60CC(3)(m). See also, Oram & Lambert [2019] FamCAFC 4 at [137]; Donnell & Dovey (2010) FLC 93-428; Burton & Churchin (2013) FLC 93-561; Mulvany & Lane (2009) FLC 93-404.
Otherwise the prospective ground appears to suggest an error in the attribution of weight by his Honour to evidence from the family report writer and, quite apart from the difficulties confronting a weight challenge from a highly discretionary decision, nothing to which I have been referred suggests any error.
Although not specifically embraced by the reframed ground, the father’s arguments suggest a miscellany of matters that his Honour “failed to consider”. In fact, those assertions are weight challenges. More accurately, they simply assert, without more, that his Honour should have accepted the father’s assertions or refer to matters that are of entirely marginal relevance. The assertions are without merit.
The Father’s Adult Child
The father apparently sought to place particular reliance upon what he contends is relevant evidence to the effect that he has a child of a previous relationship who is now an adult aged 19, with whom he asserts he has a meaningful relationship.
Putting aside the difficulties confronting a weight challenge, it is difficult to see the father persuading an appeal court of the relevance of that issue in the context of the other very serious factual matters which his Honour took into account in making the orders that he did.
Explanation For The Delay
The father’s explanation for delay is, with respect, inadequate. Such explanation as there is, is contained in an affidavit consisting of six substantive paragraphs. To the extent that the father deposes to reasons for the delay, he deposes that he is a “low income self-represented litigant” and has “been unable to secure Legal Aid”.
As was pointed out during the hearing of this application, a significant proportion of the litigants in this Court, including litigants prosecuting appeals, are self‑represented. The difficulties confronting a self-represented litigant within a legal system that is sometimes complex are significant and those difficulties are acknowledged. They are by no means dismissed. However, neither of the matters referred to by the father is an explanation for failing to file a draft appeal index in the context of:
· The father refusing or failing to reply to correspondence from the Appeals Registrar on two separate occasions;
· Failing to submit any attempt at a draft appeal index either prior to or at the hearing of this application;
· Failing to indicate any time by which a draft appeal index might be filed, even when asked specifically to specify such a timeframe;
· Failing to indicate any reason why such a timeframe could not be specified.
Otherwise the explanation for the delay, such as it is, indicates that while the father has “a support network of people that are willing and able to assist”, he says that “Family Law is not their primary focus in life, and it is not always easy for them to find the time to assist”.[11] The comments just made with respect to any reasonable expectation that a draft appeal index would be filed in the future pertain.
[11] Father’s affidavit filed 5 November 2018 at paragraph 5.
Otherwise, the father says delay is explained by his “stress levels”. The father offers no evidence of the so-called “stress levels” or their impact save for what he contended in broad and general terms from the bar table before me.
I accept that lay litigants are likely to encounter significant stress in running a trial and in seeking to appeal orders made at a trial. However, as was pointed out to the father, the overwhelming majority of self-represented litigants manage, despite that stress, to meet relevant deadlines or, if they fail to do so, to make reasonable attempts to do so. The father’s failure to respond to the correspondence from the Appeals Registrar and his failure to specify any time by when a draft index might be received are repeated here in this context.
The father filed late a document described as “further submissions”. It is in fact an affidavit. I decided to receive it in support of his application.
That affidavit seeks to undertake what is, in effect, a line-by-line, paragraph-by-paragraph analysis of all of the findings made by the trial judge. The document includes annotations to those findings, an example of which is, “[i]t is all relative, I always used the minimal amount of force, and every child around me loves how I marry the force and communication”.[12]
[12] Father’s affidavit filed 28 December 2018 at paragraph 61.
The document is voluminous, extending over some 202 numbered paragraphs. Nowhere within it is there revealed any arguments or other material which suggests success in the prospective appeal.
Neither is there, within those 202 paragraphs, an explanation for the delay or anything which suggests that the father can or will prosecute the appeal and its necessary steps with appropriate expedition. Otherwise, that affidavit descends into simply abusing Judge Vasta. For example, “Judge Vasta is a liar. It is sad to experience a corrupt Judge”.[13]
[13] Father’s affidavit filed 28 December 2018 at paragraph 66.
Injustice To The Father?
It should be accepted that orders which provide for no time between a parent and the child are grave and serious orders. That of itself is a matter which I have taken into account in the exercise of my discretion.
In this case, however, I am not persuaded that injustice to the father is established.
The evidence before the trial judge was compelling and troubling. It included evidence independent of the parties from a family consultant, family report writer and from supervisors at a contact centre well experienced in the nuances of difficult cases.
The grounds and arguments sought to be raised on the appeal suggest that the appeal has negligible prospects of success.
The father has offered no reasonable explanation for failing to meet the required deadline, but more importantly in my view, has failed to offer any time by which he will file the draft index or otherwise prosecute the appeal with diligence if the indulgence is granted to him.
There is injustice to the mother in permitting the reinstatement of an appeal that exhibits each of the characteristics just referred to.
The refusal of the application does not eliminate entirely the prospect of future orders subject to satisfying what is referred to as “the Rule in Rice and Asplund”.[14]
[14] (1979) FLC 90-725.
Orders
The father’s application will be dismissed.
The father and mother each represented themselves. No submissions are made by the mother which suggest a costs order should be made in her favour.
The Independent Children’s Lawyer seeks costs fixed in the sum of $4,111.90. It is contended that the father has been wholly unsuccessful: that the application results from his delay in the circumstances earlier referred to and he seeks an indulgence. The father indicates that he proposes to continue litigation as he is raising a “welfare issue”. The father is in receipt of Newstart allowance however financial impecuniosity is not a ban to a finding of “justifying circumstances” within the meaning of s 117(2); otherwise parties “could litigate with impunity - and with immunity against a costs order”.[15]
[15]Cooper & Oakley (No. 2) [2012] FamCAFC 187 at [14].
In all the circumstances, an order for costs is justified and I will order the father pay the Independent Children’s Lawyer’s costs of and incidental to the Application in an Appeal fixed in the sum of $4,000.00 within 90 days.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 February 2019.
Associate:
Date: 15 February 2019
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