Pillai and Doshi
[2012] FamCAFC 173
•25 October 2012
FAMILY COURT OF AUSTRALIA
| PILLAI & DOSHI | [2012] FamCAFC 173 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant husband relied on numerous grounds of appeal which were found to be without merit, save for a ground directed to an order restraining the husband from filing further applications until he complied with other orders – appeal allowed against that Order – Order set aside – written submissions for costs ordered FAMILY LAW – APPEAL – PROPERTY – where the appellant husband relied on numerous grounds of appeal which were found to be without merit, save for a ground directed to an order which required the husband to return to the wife a necklace and bracelet – appeal allowed against that Order – Order amended – written submissions for costs ordered |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Bennett v Bennett (2001) FLC 93-088 Biltoft and Biltoft (1995) FLC 92-614; 19 Fam LR 39 Clauson and Clauson (1995) FLC 92-595; (1994) 18 Fam LR 693 Gronow v Gronow (1979) 144 CLR 513 Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (Intervener)(2003) FLC 93-143; 30 Fam LR 355 In the Marriage of Rolfe (1977) 25 ALR 217; (1979) FLC 90-629; (1977) 5 Fam LR 146 Johnson v Johnson (1997) FLC 92-764 Norbis v Norbis (1986) 161 CLR 513 Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800; (1980) 5 Fam LR 579 Prince and Prince; General Credits Australia Limited (Intevenor); A-G for the State of Queensland (Intervening); A-G for the Commonwealth of Australia (Intervening) (1984) FLC 91-501 Re F: Litigants in Person Guidelines (2001) FLC 93-072 State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 |
| APPELLANT: | Mr Pillai |
| RESPONDENT: | Ms Doshi |
| FILE NUMBER: | DGC | 664 | of | 2007 |
| APPEAL NUMBERS: | SOA | 22 | of | 2011 |
| SOA | 30 | of | 2011 | |
| SOA | 51 | of | 2011 | |
| SOA | 52 | of | 2011 |
| DATE DELIVERED: | 25 October 2012 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Finn and Johnston JJ |
| HEARING DATE: | 3 October 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 3 February 2011 8 March 2011 |
| LOWER COURT MNCS: | [2011] FamCA 36 [2011] FamCA 165 [2011] FamCA 523 [2011] FamCA 594 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms McCreadie |
| SOLICITOR FOR THE RESPONDENT: | Perry Weston |
Order made on 3 October 2011
The appellant’s application in an appeal filed 16 September 2011 which sought to admit fresh evidence in appeal number SOA 22 of 2011 is dismissed.
Orders made on 25 October 2012
Orders in relation to appeal SOA 22 of 2011 (the appeal against the parenting orders made on 3 February 2011)
The appeal against Order 21 of the orders made on 3 February 2011 be allowed and that order be set aside.
The appeal be otherwise dismissed.
(a) Within 28 days of the making of these orders, the respondent wife file and serve brief written submissions (of no more than two pages in length) in relation to the costs of the appeal and also directed to the issue as to whether in the event that an order for costs was to be made against the husband, such costs should be paid prior to any distribution of monies to be made to the husband pursuant to Order 1 (iv) and Order 2 of the orders of 8 March 2011 (but subject to Orders (2) and (3) of the orders of 26 July 2011) with such submissions to be accompanied by a copy of a current bank statement for the joint account held in the names of the parties with the Commonwealth Bank […] and by copies of any child support notice or other like notices which may be directed to the monies in that account.
(b)Within 28 days of service on the husband of the wife’s submissions referred to in paragraph (a) of this order, the appellant husband file and serve brief written submissions (of no more than two pages in length) in response to the wife’s submissions.
(c)Each party’s submissions should have endorsed on them the date of service on the other party.
Orders in relation to appeal SOA 30 of 2011 (the appeal against property settlement and child support orders)
The appeal against Order 5 of the orders made on 8 March 2011 be allowed and that the order be amended to delete the words: “necklace and bracelet(s)”.
The appeal be otherwise dismissed.
The application by the husband to adduce further evidence (filed 16 September 2011) be dismissed in so far as it seeks to adduce further evidence in support of appeal SOA 30 of 2011
(a) Within 28 days of the making of these orders, the respondent wife file and serve brief written submissions (of no more than two pages in length) in relation to the costs of the appeal and also directed to the issue as to whether in the event that an order for costs was to be made against the husband, such costs should be paid prior to any distribution of monies to be made to the husband pursuant to Order 1 (iv) and Order 2 of the orders of 8 March 2011 (but subject to Orders (2) and (3) of the orders of 26 July 2011) with such submissions to be accompanied by a copy of a current bank statement for the joint account held in the names of the parties with the Commonwealth Bank […] and by copies of any child support notice or other like notices which may be directed to the monies in that account.
(b)Within 28 days of service on the husband of the wife’s submissions referred to in paragraph (a) of this order, the appellant husband file and serve brief written submissions (of no more than two pages in length) in response to the wife’s submissions.
(c)Each party’s submissions should have endorsed on them the date of service on the other party.
Appeal SOA 57 of 2011 (the appeal against costs order made 6 July 2011)
The appeal against Order 6 of the orders made on 6 July 2011 be allowed and that order be set aside.
Each party bear their own costs in relation to the appeal.
Appeal SOA 52 of 2011 (the appeal against costs order made 26 July 2011)
The appeal against Order 3 of the orders made on 26 July 2011 be dismissed.
Each party bear their own costs in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pillai & Doshi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 22 of 2011
SOA 30 of 2011
SOA 51 of 2011
SOA 52 of 2011
File Number: DGC 664 of 2007
| Mr Pillai |
Appellant
And
| Ms Doshi |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court for determination are the following appeals by Mr Pillai
(“the husband”):
(1)an appeal (SOA 22/2011) against certain parenting orders made by Young J on 3 February 2011;
(2)an appeal (SOA 30/2011) against certain property settlement orders made by Young J on 8 March 2011 – those orders also included an order dismissing an application for a child support assessment departure order;
(3)an appeal (SOA 51/2011) against an order for costs made by Young J on 6 July 2011; and
(4)an appeal (SOA 52/2011) against an order for costs made by Young J on 26 July 2011.
The respondent to all four appeals is Ms Doshi (“the wife”) who opposes all appeals and seeks to maintain the various orders made which are appealed.
The first two appeals were listed before this Court for hearing and were heard on 3 October 2011. By that date the second two appeals had been deemed abandoned pursuant to Rule 22.13(3) on account of the husband’s failure to file the required draft appeal book indexes by the due date. However, on 3 October 2011 applications for the re-instatement of both appeals were before the Court. Those applications for re-instatement were not opposed by the wife on the understanding that the appeals, if re-instated, could be heard on that day. We therefore re-instated the two appeals and also heard them on 3 October 2011 as there was sufficient material before the Court to permit us to do so.
There was also before the Court on 3 October 2011 an application by the husband to adduce further evidence in support of the appeals against the parenting orders and against the property settlement orders. In the course of hearing the appeal against the parenting orders, we dismissed the application to adduce further evidence in support of that appeal and gave brief reasons for so doing. We will record those reasons when we consider the appeal against the parenting orders. We reserved our decision in relation to the application to adduce further evidence in support of the property settlement appeal for consideration in the context of our determination of that appeal.
At the hearing on 3 October 2011 the appellant husband was self-represented and there were considerable difficulties with his written material which we will later explain. The wife was represented on that day by Counsel.
Although in relation to the four orders or sets of orders now appealed, there were separate reasons for judgment delivered by the trial judge on the days on which the orders were made, we have considered it more convenient to address all four appeals in the one judgment. This is because there is some common background to all four appeals and also some similar difficulties in relation to their determination, which have been largely caused by the nature of the husband’s written material. Thus this judgment is of unusual length.
Background to all four appeals
In his reasons for judgment in relation to the parenting orders, which he made on 3 February 2011, Young J provided (at [22] of those reasons) a background history of the parties’ relationship, and he adopted that history for purposes of his reasons in relation to his property orders made on 8 March 2011 (at [14] of those reasons). We now set out a background history which is based on that provided by his Honour.
The husband was born in 1969. At the time of the hearings before Young J (in late 2010 – early 2011) he was in full time employment earning approximately $66,000 per annum and had not re-partnered. [22(a)].
The wife was born in 1974. She migrated to Australia in or about 2003 from Fiji and at the time of the hearings before Young J had never worked in this country and had not re-partnered. [22(b)].
The parties married in Fiji in December 2002 in an arranged marriage and were traditionally married in a religious ceremony in April 2003. [22(c)].
The child, S, was born in June 2004. [22(d)].
The child, K, was born in January 2007. [22(e)].
The parties first separated in early 2007 at a time when the youngest child was approximately two weeks old and the wife moved to live in a woman’s refuge. [22(f)].
There is a dispute as to the date of final separation with the wife maintaining that it was 12 December 2007 and the husband’s evidence being that it was in September 2007. [22(g)].
After the initial separation the husband issued proceedings in the Federal Magistrates Court and interim orders were made on 5 March 2007 providing for the children to live with the wife, with the eldest child spending time with the husband. [22(h)] and [24].
On 14 March 2007 the wife was granted her first intervention order against the husband but subsequently the parties reconciled some days later. [22(i)].
Proceedings both in the Federal Magistrates Court and in the State Magistrates Court commenced again in the period immediately following upon final separation in late 2007. Family Violence Intervention Applications were concluded in the State Magistrates Court on 9 December 2010 and otherwise the family law proceedings were transferred on 28 October 2009 to the Family Court, where there were various hearings prior to the final hearings before Young J. [22(j)].
The former matrimonial home in the D region was sold pursuant to an order of this Court and the settlement of the sale occurred on the first day of the defended hearing before Young J of the parenting proceedings. [22(l)].
After the costs and expenses of sale, the discharge of the first mortgage and the payment to Legal Aid of the sum required to remove the caveat lodged upon the title to secure costs previously incurred by the wife, there remained a net sum of $111,254.31. The proceeds were invested in the joint names of the husband and wife in an interest bearing investment account pending further order of the Court. [22(k)].
Young J found that there had been a long history of the husband’s non-compliance with payments of child support as assessed and noted that the husband’s salary had been garnisheed and a sum of $1,082 per calendar month was by the time of the trial being deducted by the Child Support Agency directly from his salary and being paid to the wife. [22(m)].
The final parenting proceedings were heard by Young J from 20 to 23 December 2010 and on 5 January 2011, with reasons for judgment being delivered and orders made on 3 February 2011. A notice of appeal was filed by the husband against those orders of 3 March 2011 with an amended notice of appeal being subsequently filed on 17 April 2011.
The final property proceedings were heard by his Honour on 7 and 8 February 2011 with reasons for judgment being delivered and orders made on
8 March 2011. The husband filed a notice of appeal against those orders on
5 April 2011.
On 17 June 2011 the husband filed an application seeking a stay of the orders which he had appealed and also seeking orders for some payments to be made to the parties (or on their account) from the proceeds of sale of the matrimonial home. When that application was listed before Young J for hearing on 6 July 2011, the husband did not appear. In addition to making orders for certain payments to both parties, his Honour ordered the husband pay the wife’s costs of that day fixed at $475. Subsequently, on 26 July 2011 the matter was relisted before his Honour apparently because of the husband’s failure to attend on the previous occasion. Although some orders were made for the husband’s benefit on that day, he was again ordered to pay the wife’s costs fixed in the sum of $1,000. The costs orders of 6 July 2011 and 26 July 2011 are the subject of the re-instated appeals now before us.
Appeal against parenting orders
It has been an extraordinarily difficult and time consuming task to deal with the appeal against the parenting orders made by Young J on 3 February 2011. This is because the husband’s amended notice of appeal (filed on 17 April 2011) contained 53 grounds of appeal (most of which were directed to specific paragraphs of his Honour’s reasons for judgment in relation to the parenting orders), while his written summary of argument ran to some 19 pages (thereby breaching Rule 22.22(2) of the Family Law Rules 2004 (Cth) (“the Rules”) which required that it did not exceed 10 pages) and contained 35 paragraphs (with some sub-paragraphs) only some of which appear to be directed to the grounds of appeal, while others raise matters not apparently covered by the grounds of appeal.
Because the husband’s summary of argument did not comply with the Rules not only in respect of its length, but also for other reasons, including that it, in the words used in the wife’s summary of argument, “does not disclose any Grounds of Appeal or identify any errors of fact or law relied on in support of [the appeal], and appears to be rather a restatement of the Appellant’s evidence, commentary and submissions”, the wife sought in her summary of argument that the appeal should be dismissed (with costs) without the court hearing argument from the husband.
We agree that this would have been a course well open to us. However we have preferred to endeavour to address the husband’s complaints on their merits and as best we can understand them from his written material and oral submissions. But we repeat that this has proved to be a very time-consuming and lengthy exercise.
Outline of discussion of appeal against parenting orders
In order to give some context to the parenting orders made by Young J, we propose to begin our consideration of the appeal against those orders by setting out a history of the parenting and apprehended violence proceedings between the parties prior to the making of the orders now appealed as that history was recorded by Young J.
After we have explained the earlier proceedings and orders, we will set out the parenting orders made by Young J. We will then consider the balance of his Honour’s reasons for judgment in relation to those orders.
Finally, after summarising his Honour’s reasons and addressing where relevant the grounds of appeal, we will address separately the issues raised in the husband’s summary of argument.
Because the grounds of appeal contained in the husband’s amended notice of appeal were mostly directed to paragraphs in Young J’s reasons for judgment, we will indicate in the discussion which follows the paragraphs from his Honour’s reasons to which we are referring. We will at the same time endeavour to address any grounds of appeal in the amended notice of appeal which are apparently relevant to the matters under discussion.
We mention at this point that the first eight grounds of appeal in the amended notice of appeal are not addressed to specific paragraphs of his Honour’s reasons. Rather they contain generalised complaints which because of their generality cannot for the most part be addressed. In many instances these initial grounds (and many later grounds) contain mere commentary on his Honour’s decision or reasons.
In summary Grounds 1 to 8 allege that his Honour used “hearsays” and opinions from the family report writer, the Independent Children’s Lawyer, and the solicitors for the wife, rather than factual evidence; that he did not apply the provisions of the Family Law Act 1975 (Cth) (“the Act”) nor act in the best interests of the children; and that the husband was “downtrodden” during the case which, as we will later demonstrate, is a complaint which cannot be sustained. These initial eight grounds also complain that his Honour should not have split the parenting and property proceedings, which he was entitled in the exercise of his discretion to do, and they also contain criticisms of the Independent Children’s Lawyer, which are not an appropriate subject for grounds of appeal.
A later ground of appeal (Ground 13) takes issue with the accuracy of a number of his Honour’s findings at [22] of his reasons of 3 February 2011 concerning the factual background to this case. Earlier in these reasons we have summarised his Honour’s findings about that background. Even if it was to be accepted that his Honour has made the factual errors claimed by the husband in his Ground 13, the husband has not demonstrated that those errors would be sufficiently material to cause us to interfere with his Honour’s parenting decision.
Similarly, in Grounds 14 to 24 the husband takes issue with the accuracy and to some extent, it would seem, the relevance of his Honour’s findings concerning the history prior to the trial before his Honour of the parenting proceedings (particularly when those proceedings were before Cronin J and also a Senior Registrar of this Court), and also of the apprehended violence proceedings involving the parties. We will shortly set out that history in order to give some context to the orders made by his Honour. But we would say at this point that we are not persuaded that the husband’s complaints in this regard (even if they were competent grounds of appeal or that they record accurately a particular matter) would justify us in interfering with his Honour’s decision.
As we have foreshadowed, we consider that it will be useful before we set out the final parenting orders made by Young J on 3 February 2011 and which are the subject of the current appeal, to set out a detailed history of the parenting and apprehended violence proceedings and orders made prior to the final hearing as that history was recorded by Young J at [24] to [75] of his reasons delivered on 3 February 2011 (Those reasons are hereafter referred to where context permits as “Reasons 3.2.11”).
History of parenting proceedings and orders
After the initial separation of the parties and following the filing of an application by the husband on 21 February 2007, interim orders were made in the Federal Magistrates Court on 5 March 2007 placing the names of the children on the Airport Watch List. It was further ordered by consent that the children live with the wife and that the eldest child spend time on a day only basis with the husband. ([24], Reasons 3.2.11). As earlier mentioned the parties then finally separated in the second half of 2007.
Further interim orders were made on 1 September 2008 to the effect that the children were to spend day time on each Saturday with the husband. A Family Report was ordered to be prepared and the children’s names were re-instated on the Airport Watch List. ([25], Reasons 3.2.11).
The first Family Report was released to the parties on 17 November 2008. This report was not in evidence before Young J in the final parenting proceedings. ([26], Reasons 3.2.11).
The matter returned to the Federal Magistrates Court before Phipps FM on
1 December 2008. Orders were made granting the husband daily and thereafter alternate weekend time with both children. The proceedings were then fixed for a final hearing on 29 April 2009. ([27], Reasons 3.2.11).
The husband then filed further interim proceedings in relation to the “changeover” arrangements. Those proceedings were dismissed by Phipps FM on 22 September 2008. ([28], Reasons 3.2.11).
The matter came before Baker FM on 20 April 2009 for a final defended hearing. On this occasion both parties were represented by Counsel, the matter settled out of court and orders were made by consent. Those consent orders provided for the discharge of all previous orders, for the parties to have equal shared parental responsibility, for the children to live with the wife and spend time with the husband on an alternate weekend and school holiday basis and for various religious and cultural days and events. Orders were also made re-instating the names of the children upon the Airport Watch List and each parent was restrained from removing the children from Victoria or Australia. ([29] & [30], Reasons 3.2.11).
However, shortly thereafter, on 10 July 2009 the husband filed an initiating application seeking that the final consent orders be discharged, that he have sole parental responsibility for the children, and that the children live with him and spend supervised time only with the wife. ([31], Reasons 3.2.11).
Those proceedings came before Riethmuller FM on 28 and 30 July 2009. ([32], Reasons 3.2.11). On that occasion the Court adjourned the matter for a final hearing on 28 October 2009, appointed an Independent Children’s Lawyer, required the parties to attend a post-separation course, ordered an updated Family Report, and also ordered that the husband be restrained from:
(a)discussing the wife or events in her home in the presence or hearing of the children;
(b) criticising the wife in the presence or hearing of the children;
(c)discussing any proceedings between the parents in the hearing of the children; and
(d)recording in writing, on sound, tape or film or by any electronic means any statements by the children about the parent or other members of the parent’s household or any other activity involving that parent or from permitting any other person to so do. ([33], Reasons 3.2.11).
We note that it was found by Young J in his reasons for judgment of 3 February 2011 that “[t]he husband did not abide by those orders and continued to record the children’s activities for use as evidence by him in future proceedings”. ([34], Reasons 3.2.11).
At the hearing on 28 and 30 July 2009, Riethmuller FM also dismissed a child support departure application by the husband. ([35], Reasons 3.2.11).
On 28 October 2009, the final hearing was listed before Connolly FM. However, his Honour declined to commence the defended hearing and transferred all proceedings to the Family Court. ([36], Reasons 3.2.11).
On 27 November 2009 the husband collected the children to spend time with them. After spending time with them he refused to return them to the wife. The wife then filed an application for a recovery order in the Family Court on
1 December 2009. ([37], Reasons 3.2.11).
The wife’s application was listed before Senior Registrar FitzGibbon on
16 December 2009. On the first day of the hearing the Senior Registrar directed the husband to bring the children to the Court on the following morning. ([37] & [38], Reasons 3.2.11).
On the following day, 17 December 2009, the Senior Registrar gave reasons for judgment and made orders that the children continue to live with the wife pursuant to the consent orders made on 20 April 2009. ([40], Reasons 3.2.11). The Senior Registrar suspended the consent order which provided for the husband to spend time with the children. ([41], Reasons 3.2.11). The Senior Registrar requested the appointment of an Independent Children’s Lawyer and a report to be prepared by the Victorian child protection authorities pursuant to s 91B of the Act. ([42], Reasons 3.2.11). The parents were ordered not to use any physical discipline upon the children or verbally abuse them. The Senior Registrar also amended paragraph 4(a), (b) and (c) of Federal Magistrate Reithmuller’s orders made on 30 July 2009 to include the wife. It was also ordered that neither parent take the children to any other counsellor or psychologist, doctor or treating health professional save for treatment that is urgent or required or otherwise ordered by the Court. ([43], Reasons 3.2.11).
On 13 January 2010 the matter returned for hearing before the Senior Registrar when ex tempore reasons for judgment were delivered and orders made. The orders continued to suspend the husband’s time with the children and required the parents to complete the intake process at a contact service. The husband was then to spend no less than two hours a fortnight of supervised time at that venue. In his reasons for judgment of 3 February 2011, Young J found that the wife had contacted the contact service and completed the required intake process. His Honour went on to find:
47.… The husband did not comply with the orders of the Court, has not and will not make intake arrangements with that venue and has not attended and therefore has had no supervised or any other time with the children since late 2009, save for a brief period with the children at the rooms of the Family Consultant when the Family Report was under preparation.
On 13 January 2010 the Senior Registrar also ordered that the wife be permitted to enrol the child, S, at B Primary School, which she continued to attend at the time of the trial. ([48], Reasons 3.2.11). The parents were also ordered to attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purpose of preparing a psychiatric assessment of each of them at their own cost. The wife attended, and a report was prepared by a Dr D. Young J found that the husband refused and had continued to refuse as at the time of the trial to attend such a consultation; had maintained that he could not afford to pay the fee involved; and had disputed the necessity for any such psychiatric assessment. In his reasons, Young J said at [49] “[t]hat is a matter of significance within the context of the orders now sought by the Independent Children’s Lawyer”. ([49] & [53], Reasons 3.2.11).
The Senior Registrar ordered that the child S’s “start up bonus voucher” was to be applied to the cost of her uniforms and initial expenses at B Primary School. Young J stated in his reasons that “[t]hose monies however were taken and applied by the husband in enrolling [child S] at a different primary school … and those monies have both been wasted and the wife put to further expense.” ([50], Reasons 3.2.11).
On 24 February 2010 all proceedings came before Cronin J. Orders were made on that occasion in relation to property and financial issues and included provision for the transfer of the former matrimonial home to the wife upon trust for sale. ([55], Reasons 3.2.11).
On that day, Cronin J also heard an application by the husband (who was now self-represented) for a review of the orders made by the Senior Registrar on both 17 December 2009 and 13 January 2010. In his reasons for judgment, delivered on 2 March 2010, Cronin J concluded that there was no basis for him to alter the orders of the Senior Registrar, “save as to both emphasise and make easier for the husband to obtain a psychiatric assessment”, with orders being made for this purpose. ([55], [57], [59] and [62], Reasons 3.2.11).
On 8 June 2010 the matter came before Young J for the first day of the trial. An updated Family Report was ordered to be prepared by a family consultant, Mr U. By consent it was ordered that the children’s names be placed on the Airport Watch List. Further orders as to property and financial matters were also made. ([63] & [64], Reasons 3.2.11).
Also on that occasion, Young J was advised of certain alleged behaviour of the husband which necessitated the involvement of police and the imposition of bail conditions upon the husband. The bail conditions were largely directed to the protection of the wife. ([63] & [65], Reasons 3.2.11).
On 12 August 2010, Young J fixed the parenting proceedings for a four day defended hearing commencing 20 December 2010, and also made detailed case management orders in relation to property and financial issues. ([66], Reasons 3.2.11).
As mentioned earlier, Grounds 14 to 24 raise issues about the accuracy or relevance of the above history as it emerges from Young J’s reasons. But nothing raised in those grounds would cause us to interfere with his Honour’s decision.
History of Apprehended Violence Proceedings and Orders
In the following paragraphs of his reasons for judgment of 3 February 2011, Young J also provided a history of the apprehended violence orders made in proceedings between the parties:
68.On 14 March 2007 the wife obtained an intervention order from the [State] Magistrates Court. Her application for an extension of the terms of that order was filed on 12 March 2008 and was refused.
69.On 20 April 2010 the Victoria Police, on behalf of the wife and children filed an Application and Warrant for an Intervention Order against the husband. Those proceedings were issued out of the [State] Magistrates Court and the husband was bailed to appear at the final hearing of that Application.
70.On that same day the husband filed an Application and Summons for an Intervention Order against the wife seeking protection for himself as the affected family member. There remains some confusion as to whether that Application is extant and awaiting hearing in the [State] Magistrates Court. No orders were made against the wife.
71.The Application filed by the police for the protection of the wife and children was finally heard as a defended matter in the State Magistrates Court [in] December 2010. …
72.The Court pronounced an order, not for any defined period but until further order. The protected persons are the wife and both of the children.
73.The Court ordered that the respondent husband must not:
1.commit family violence against the wife or either of the children;
2.intentionally damage any property of the wife or threaten so to do;
3.follow the protected persons or keep them under surveillance;
4.publish on the internet, by email or other electronic communication any material about any of them;
5.contact or communicate with a protected person by any means;
6.approach or remain within 200 metres of a protected person;
7.go to or remain within 400 metres of any place where a protected person lives, works or attends school;
8.get any other person to do anything which the husband must not do under this order.
74.The notations to that Family Violence Protection Order provided that the husband did not agree to the order being made or to its terms. … [At the conclusion of the final parenting proceedings] the husband … filed a Notice of Appeal which is now listed in the County Court at Melbourne [in] March 2011. …
The significance of this history of the apprehended violence proceedings was then explained by Young J in the following way:
75.It is a matter of very real significance that this Family Violence Intervention Order was recently made at a contested hearing and is to continue indefinitely. I have given very substantial weight to the impact of this Order made in contested proceedings but always subject now to the appeal process. Proven findings of violence rebut the presumption of equal shared parenting responsibility and are a primary consideration in determining what is in the best interests of children pursuant to s 60CC of the Act. I have hereafter given very careful consideration and importance to all issues of such violence and both the physical and psychological harm caused to affected persons.
It is important to say at this point that in his summary of argument (paragraph 9.4) the husband has stated that on 2 August 2011 the County Court of Victoria removed the children from the intervention order apparently in the context of a successful or partially successful appeal against that order. It is true that this fact would lessen the weight that could be placed on the intervention order, although Young J could not be criticised for the weight he placed on the order given the appeal against the order had not been determined at the date of his reasons and orders. However, the fact of the successful or partially successful appeal against that order would not cause us to interfere with Young J’s orders given the other evidence which was before him in relation to family violence and risk of harm to the children in the husband’s care.
Section 91B Report
It is relevant at this point to mention that immediately after the discussion in his reasons of the apprehended violence proceedings and orders, Young J set out (at [76]) the contents of the report that a Senior Child Protection Practitioner [Ms DA] had provided on 8 January 2010 pursuant to a Senior Registrar’s order made on 17 December 2009. The content of that report is as follows:
The decision has been made that Child Protection is not intending to intervene further at this stage as Child Protection has made some enquiries at the intake phase and has no significant concern for risk of harm for [S] and [K] in the care of their mother [Ms Doshi]. [The mother] continues to engage with family support services.
Child Protection record reveals that since 1996, Child Protection has been contacted on 15 separate occasions in relation to safety and wellbeing of [the children]. Reports have primarily related to children’s exposure to parental conflict, and allegations and counter allegations between the parents. Of these 15 reports, reports made in April 2007 and July 2008 were investigated. The concerns investigated in April 2007 was substantiated on the ground of emotional harm. Since that time, the reports were all either closed at Intake phase or involved consultation with Community Based Child Protection (Section 38 of Children, Youth and Family Act 2005).
There is historical information in Department of Human Services files (both Child Protection and Client Relations) that is likely of relevance to the court and is available to be subpoenaed.
In relation to children’s contact with their father [Mr Pillai], Child Protection recommends that in the event that the contact between the children and the father is reinstated, that all contact to be supervised. This should be pending further assessment of regarding the need of supervision given the level of acrimony between [the mother] and [the father] and the likelihood (case history suggest this) of children’s exposure to issues of conflict with their father.
In the circumstances, Child Protection does not intend to intervene, but has information in which the Federal Magistrates court may be interested”.
Young J then made the following observations in relation to that report:
77.I had before me in two sealed envelopes placed with the Court file information of and related to the persons who made those notifications. Predominantly that was the husband and he has acknowledged same in his submissions to me from the Bar table. [Ms DA] was not required to give evidence but it is proper and in the best interests of both children that I have regard to the report and, subject to all of the evidence in these proceedings, the recommendation for supervision of the father’s time to be spent with the children. I record that I have not been asked to open and have not opened the sealed envelopes as all complaints have been lodged by family members and no complaints have been made or investigated after the December 2009 orders of the Senior Registrar.
The Parenting Orders made by Young J on 3 February 2011
The parenting orders which his Honour made on 3 February 2011 were as follows (with those which are the subject of the current appeal being emphasised by us):
1.THAT all previous children and parenting orders made in this Court be discharged.
2.THAT the wife have sole parental responsibility for the children of the marriage [S] born … June 2004 and [K] born … January 2007 (“the children”).
3.THAT the children live with the wife.
4.THAT any period of time as provided for in Order 5 hereof that the husband would spend with the children be suspended pending his:
(a)completion of the intake documents for supervised time to be spent at the [G] Children’s Contact Service (“the Contact Service”); and
(b)undertaking at his expense a psychiatric assessment by a qualified psychiatrist, but not necessarily Dr [D], as approved of by the Independent Children’s Lawyer (while they remain acting in these proceedings) or otherwise by the wife’s solicitor or the Court.
5.THAT the husband spend time with the children on a supervised basis at the Contact Service on such dates and times as can be accommodated but to commence with two hours each fortnight on a weekend, and both parents are to do all acts and things so as to facilitate such supervised time commencing as soon as the husband has complied with the requirements of the preceding order.
6.THAT if the husband does not comply with paragraphs 4(a) and (b) hereof within 120 days of the date of these Orders then his time with the children as provided for in paragraph 5 hereof be suspended.
7.THAT in the event that the husband elects not to accept supervised time with the children at the Contact Service and undertake his required actions in that regard then the wife hereafter forward to the husband each six months two photographs of the children.
8.THAT the wife authorise any kindergarten/child care centre/school attended by the children or either of them to provide to the husband, at his expense, (if any) copies of all reports, newsletters and photograph order forms and such like information generated in relation to the children, or either of them, and which they normally provide to parents, the wife to advise the husband in writing of the kindergarten/child care centre/school attended by each of the children and to advise of any changes thereto.
9.THAT the wife do all such acts and things in order that the husband be authorised to communicate with any medical practitioner or allied health professional engaged by her for the children, subject to any reasonable conditions imposed and the wife is to advise to the husband in writing of their contact details and keep such contact details regularly updated.
10.THAT the wife and the husband keep the other advised at all times of their respective residential address and telephone contact number and immediately advise of any changes thereto.
11.THAT the wife advise the husband immediately in the event that the children or either of them suffers any serious illness or injury, together with the name, address and telephone number of any health professional or health facility attended by the children and authorise such person or facility to provide any reasonable information requested by the husband relating to the health of the children or either of the children, subject to any conditions imposed by such person or facility.
12.THAT the wife, the husband, and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of that parent’s household or family in the presence or hearing of either or both of the children or permitting any other person to do so;
(b)discussing these court proceedings with either of the children.
13.THAT the husband be and is restrained by injunction from consuming alcohol during and for 24 hours prior to any time he may spend with either or both of the children.
14.THAT the names of the children be forthwith removed from the Airport Watch List and the solicitor for the wife notify in writing the Australian Federal Police and all required authorities of this order.
15.THAT the children be permitted to depart the Commonwealth of Australia, in the company of their mother, for the purposes of an overseas holiday.
16.THAT the wife be authorised to apply and forthwith obtain an Australian passport for the child [K] born … January 2007 so as to enable him to travel in and out of the Commonwealth of Australia.
17.THAT the consent of the husband to the issuing of such an Australian passport for [K] be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
18.THAT the wife hold in safe custody the Australian passports of the children and her solicitor be authorised to return to her the passport of the child [S].
19.THAT the husband forthwith return to the wife the original birth certificates for the children so as to facilitate her passport application on their behalf.
20.THAT the wife, her servants and agents, are restrained from bringing or permitting either of the children to be brought into contact with a community priest known as [ES], a person known to the parties.
21.THAT the husband be restrained from filing in this Court or in the Federal Magistrates Court any further application in relation to children and parenting orders until he has:
(a)complied with the requirements of Order 4 hereof;
(b)provided to the wife’s solicitors and the Court a true copy of a psychiatric assessment and report upon himself;
(c)has spent regular supervised time over four (4) months with the children pursuant to Order 5 hereof; or
(d)a Judge of the Family Court otherwise orders that he be entitled to file a further application.
22.THAT pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
23.THAT the appointment of the Independent Children’s Lawyer be discharged on a date one (1) month after the delivery of this Judgment and if any appeal is filed then at the conclusion of that process.
24.THAT otherwise all children’s and parenting applications (but not property and financial applications and the departure from the child support orders) be dismissed.
25.THAT the amended orders as sought by the husband in his final submissions and as recorded in document 127 in the Court Index, paragraphs 1-27 (inclusive) and paragraphs 30, 31 and 32 thereof be dismissed.
26.THAT all costs of and incidental to this hearing be reserved pending further application and submissions.
Reasons of Young J for parenting orders made on 3 February 2011
His Honour commenced his very lengthy reasons for judgment in relation to the above orders by outlining the significant issues in dispute between the parties in the parenting proceedings before him:
1.… The parties were at odds on all significant issues and the orders sought by the applicant husband were in marked contrast to the orders proposed by the respondent wife and the Independent Children’s Lawyer. At the heart of the various allegations were issues of alleged family violence, threats and abuse, marital conflict, a total lack of communication and an alleged inappropriate influence upon both children. Parental responsibility was a primary issue as was the refusal of the husband to accept any form of supervision of any of his time spent with the children and his total rejection of any role, influence or recommendation made by counsellors or social workers, the Family Consultant or the Independent Children’s Lawyer. …
His Honour then summarised the husband’s, wife’s and Independent Children’s Lawyer’s applications in relation to the parenting proceedings. ([3] to [7], Reasons 3.2.11). As much of the husband’s appeal centres on the claim that the trial judge made orders which did not give effect to the husband’s application, we will here set out his Honour’s summary of the husband’s proposals:
5.The first 26 orders [sought by the husband] related to children and parenting issues and, in summary, those orders are that:
(a)the previous consent children and parenting orders pronounced 20 April 2009 be discharged together with all interim orders made thereafter;
(b)the children live with the husband;
(c)the husband have sole parental responsibility for all long term and residential needs of the children and specifically for their cultural upbringing and that they celebrate all cultural and religious festivals with the husband each year;
(d)that the paternal grandparents act as guardians of the children during the husband’s working hours;
(e)that the husband and wife keep each other informed of their residential telephone contact numbers and advise the other of any medical or other emergency involving the children;
(f)that the wife have supervised time spent with the children for five hours in each week at an agreed contact centre;
(g)that the children spend two hours with the wife on her birthday and day time on Mother’s Day between 10.00 a.m. and 5.00 p.m. with her;
(h)the parties continue to communicate via a communication book but always to respect the privacy of the other parent;
(i)the wife not engage in any superstitious practice or black magic;
(j)that both parents strictly refrain from denigrating the other parent or from in any way influencing the children against such other parent or discussing court proceedings with them;
(k)that the wife have telephone contact for twenty minutes on each Tuesday and Thursday evening;
(l)the changeover location be midway between the respective residences of each of the parents or otherwise as ordered;
(m)the wife and her solicitors provide written undertakings or comply with court orders not to in any way harass, intimidate, be violent or abusive to or threaten the husband or the children or to remove the children from him without his consent;
(n)the husband be at liberty to enrol the children in school and at kindergarten of his choice and for the parties equally to be responsible for the educational and financial needs of the children;
(o)that the parents be each prohibited from leaving Victoria with the children without the express written consent of the other party obtained fourteen days in advance of any such departure or otherwise by court order;
(p)that if the wife were to take one or both of the children overseas she must pay a bond of $50,000 into a trust account held by the husband pending the children’s return and otherwise pay all court and legal costs of any proceedings to recover or return the children to the husband;
(q)that the names of both children be placed or maintained upon the Commonwealth Airport Watch List order and the parents be each restrained from removing or attempting to remove the children from the Commonwealth of Australia.
6.At the conclusion of the evidence and as part of his final submissions the husband sought leave to further amend his children and parenting orders sought. … Those amendments primarily incorporate further orders to the effect that:
(a)the children participate in yearly prayer ceremonies with him at his residence on important dates and commencing 15 January 2011;
(b)that social workers be banned from contacting, approaching, questioning and discussing any matters with the children;
(c)that [Ms L] be banned from contacting or coming within 200 metres of the children;
(d)that pursuant to s 68R of the Family Law Act (Cth) (“the Act”) the family law violence intervention order pronounced in the [State] Magistrates Court on 9 December 2010 be revoked on the grounds that it was fraudulently obtained, and the children’s names be deleted from that order and that it be equally applicable to the wife.
(e)that if the wife were to agree to the discharge of the three previous orders (as identified above) then her time with the children be extended from the previously offered five hours per week on a supervised basis so that she would spend time with each of them as follows:
§each alternative week from 3.30 p.m. Friday to 4.00 p.m. Sunday;
§for the first half of all school holidays and/or the second half of the Christmas holidays for two weeks;
§on the children’s birthdays;
§provided always that she remains living within a 15 kilometre radius of the husband’s residence.
It appears from his Honour’s reasons at [13] that by the conclusion of the trial the wife and the Independent Children’s Lawyer were largely in agreement as to the orders which his Honour should make. The Independent Children’s Lawyer’s proposals which were outlined by his Honour at [12] of his reasons, were as follows:
(a)that all extant children and parenting orders be discharged;
(b)that the wife have sole responsibility for the children and that they live with her;
(c)the children spend time with the husband on each alternate weekend to be supervised at [G] Children’s Contact Centre at dates and times that are suitable to such centre;
(d)the husband be authorised to receive all communications, reports and notices normally provided to parents by the school, child care or crèche which the children attend;
(e)the husband be authorised to communicate with any medical practitioner or allied health practitioner, at his own expense, and subject to all conditions imposed by such professionals;
(f)that each of the parents be restrained from denigrating the other parent in the presence, sight or hearing of the children or either of them or to allow any other person so to do;
(g)the husband be prohibited from bringing any further application in relation to parenting orders until:
(i)he spends six months of supervised time with the children at an approved contact centre; and
(ii)he provides to the wife’s solicitors and to the court a psychiatric assessment of himself completed by Dr [D].
In addition to the Independent Children’s Lawyer’s proposals, the wife and Independent Children’s Lawyer also agreed to orders proposed by the wife for a new passport to be issued for the child, K, and for the wife to be free to travel with the children to Fiji for a holiday. ([13], Reasons 3.2.11).
His Honour next set out in his reasons the affidavits and other documents relied on before him by both parents and the Independent Children’s Lawyer. Given the husband’s challenges to his Honour’s assessment of the evidence and his decision not to admit certain evidence, we will now set out his Honour’s record of material relied on by the husband and his reasons for not admitting certain evidence sought to be relied on by the husband:
14.The husband relied upon the following Court documents which he had filed:
(a)his Case Outline document containing an extensive reference to facts, submissions and legal argument in the proceedings;
(b)his affidavit and evidence in chief filed 13 September 2010 and all annexures thereto;
(c)his further affidavit and evidence in chief and annexures thereto filed 1 November 2010;
(d)his Financial Statement filed 12 August 2010;
(e)various subpoenas which he had issued to [Ms L] and [Ms DA] and to two police officers;
(f)the affidavits of his parents [the paternal grandparents].
15.Otherwise the husband had filed voluminous earlier affidavits both on interlocutory issues and relevant to the 20 April 2009 proceedings and other earlier proceedings and he purported to rely upon all of those affidavits and annexures thereto. I declined to permit those documents to be formally in evidence as part of his case related to his final orders now sought. I however advised the husband that he could give evidence in chief on any matters of direct relevance to the primary issues before the Court or in rebuttal to any evidence filed by or on behalf of the wife and, as a litigant in person, I emphasised his rights to reasonably place all helpful and relevant evidence before the Court.
16.There arose a specific issue with the intended evidence of [Ms L]. The husband had served a subpoena upon her by delivering the document to her mail box without any other proper notification, conduct money or personal service. Subsequently he re-served the intended witness by registered post and there was no affidavit of such service, rather the Court was told by him of his actions in that regard. Prior to the first day of hearing the intended witness had in any event advised a Registrar of this Court and delivered a medical certificate of her stress and ill health and her inability to attend at Court and give evidence. All of those matters remained unresolved and Ms [L] did not give evidence in this hearing.
17.The husband had otherwise requested the Independent Children’s Lawyer to issue a subpoena directed to two members of the Victoria Police Force to give evidence upon a past incident. The Court was advised that compliance was not possible with that subpoena as one of the police officers was absent on annual leave and the other police officer was on long term stress leave. They did not give evidence.
In Ground 9 the husband complains that the trial judge “failed to give any weight” to the husband’s material described in [14(a)] of his Honour’s reasons. A reading of his Honour’s reasons reveals that he certainly considered many matters raised by the husband and that he gave those matters varying degrees of weight. However, it must be explained for the husband’s benefit that it is very difficult for an appeal court to interfere with a trial judgment on the basis only of the weight which a trial judge has given to a particular matter (Gronow v Gronow (1979) 144 CLR 513).
In Ground 10 the husband complains that the trial judge has not taken into account the evidence of the husband and his witnesses of alleged abuse of the children by the wife. It is clear from his Honour’s reasons that he was aware of that evidence and that he rejected it.
Grounds 11 and 12 are directed to the husband’s desire that there be evidence from a Ms L and from two Victorian police officers. It will have been seen that his Honour explained at [16] and [17] of his reasons why such evidence was not available. We see no error in his approach.
Young J then provided a detailed history of the parties’ relationship and of the parenting and apprehended violence proceedings between them ([22] to [77], Reasons 3.2.11). We have already summarised that material above, and we have also earlier referred to the grounds of appeal (Grounds 14-24) apparently addressed to that part of his Honour’s reasons.
Given that it is one of the husband’s grounds of appeal (Ground 3) that he was “downtrodden” throughout this case, it is relevant to note that after providing that detailed history, his Honour discussed the husband’s position as a litigant in person saying:
78.As the husband was self represented I endeavoured at all times to ensure procedural fairness and that he had a proper understanding of the procedures of trial and of his rights in conducting his own case. I am satisfied that the husband had a very substantial factual knowledge of all matters in issue. He was firm and positive in the way he presented his submissions to the Court and asked questions of the wife and her witnesses. He conducted himself very appropriately in Court and at all times appeared to be fully informed of the factual issues that were in argument before the Court.
His Honour then referred to the guidelines in relation to litigants in person contained in Johnson v Johnson (1997) FLC 92-764 as modified in Re F: Litigants in Person Guidelines (2001) FLC 93-072.
His Honour concluded at [84] that “the trial was conducted in a manner designed to ensure that the husband was understanding of the process and his rights” and that he was “wholly satisfied that the husband was given procedural fairness”. We observe in passing that the transcript of the trial available to us confirms that these matters are as recorded by his Honour.
Having then discussed the benefit that a trial judge has in being able to observe the parties giving evidence, his Honour went on to explain the standard of proof which he was required to apply. Having regard to the husband’s concerns about the treatment by the trial judge of his allegations of abuse of the children by the wife (Ground 25), it is relevant to note that his Honour clearly and correctly stated “[t]he more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required”. ([89], Reasons 3.2.11).
His Honour then turned to the sections in the Act relevant to parenting proceedings, and made the necessary findings required under various sections to which we will shortly refer. In Grounds 26 to 32 the husband takes issue with his Honour’s application of those sections. But as the following discussion will show, no criticism can be made of his Honour in this regard.
Having set out the objects and principles contained in s 60B of the Act, his Honour said:
98.I have had careful regard both to the objects and principles as expressed above. There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case, partly nullify those objects and principles. The parents and extended family have a largely un-co-operative and very strained relationship with personal and communication issues which I have more fully explored. Ideally, as parents, they should be more understanding and respectful of each other and it would be very helpful if they each reflected upon and acted more positively to perform their primary obligations to the children.
His Honour went on to consider the presumption of equal shared parental responsibility contained in s 61DA of the Act, concluding that the presumption was “clearly and firmly rebutted on the facts of this case”:
102.I commence with the presumption that an equal shared parental responsibility order is appropriate for children but that presumption is clearly and firmly rebutted on the facts of this case. There is clear evidence of family violence enforced the past history of this matter and by the current order of the [State] Magistrates Court pronounced [in] December of last year (subject to the now filed appeal). Both the wife and children are persons protected by that order against any action or conduct of the husband and on the basis of the provision of sub-paragraph 2(b) of this section there exists very clear and reasonable grounds for the presumption to be properly and firmly rebutted.
103.In any event there are other significant factors which identified that it is not in the best interests of these children for their parents to share equal responsibility for them. There is no level of communication between the parents and there is continuing conflict, abuse and a total lack of trust and I have examined these issues hereafter in this judgment. The husband has had no meaningful time spent with the children for over one year and both that fact and the reasons why it has come about support a rejection of the sole parent order sought by him and enforce the substantial benefit to the children of their mother being the parent solely responsible for the care, welfare and upbringing.
His Honour then turned to s 60CC of the Act and to the primary and additional considerations to which a court must have regard in determining what orders would be in a child’s best interests.
In considering the primary considerations in s 60CC(2) his Honour said “[o]verwhelmingly the primary consideration is for children to maintain and enjoy a meaningful relationship with both their mother and father” but that “[t]his is a difficult task in parenting cases where there is a continuing level of conflict, violence and abuse and a lack of respect or understanding of the other parent.” ([106], Reasons 3.2.11). He noted that the husband had elected not to spend supervised time with the children at a contact centre, even though this could have been “the commencement of a relationship with the children which … may have continued without supervision and away from that particular contact centre”, and he concluded that having carefully assessed all the evidence, there was “no meaningful relationship between the husband and his children and this case presents issues of not the maintenance and enjoyment of such a relationship but the re-establishment thereof”. ([106], Reasons 3.2.11).
His Honour then observed that on the most recent occasion that the husband spent with the children, the husband did not use it “to enjoy his relationship with the children and further bond with them” but used it to record “their words and actions and influencing them against their mother”. His Honour found that this situation was likely to continue “until the husband can put behind him the conflict, aggression and compulsion that he has displayed towards these proceedings and the wife”. ([107], Reasons 3.2.11). His Honour then concluded that “the facts of this case are wholly supportive of the need to pronounce a sole parenting responsibility order”. ([107], Reasons 3.2.11).
Turning to sub-section 60CC(2)(b) and the need to protect the children from harm, abuse, neglect or violence the trial judge emphasised “the alleged physical and, most certainly, psychological harm being alleged to the children from exposure to the actions or abuse of the husband” and the “strong evidence” from the Family Consultant and other witnesses called on behalf of the wife in relation to these matters. His Honour noted that the Independent Children’s Lawyer had “very significant concern” about these matters and he concluded:
109.On all of the evidence before the Court there is a real and ongoing need to protect both children from likely psychological harm and being exposed to abuse and family violence. That is one of the reasons why the Senior Registrar had previously provided for supervised time to be spent at an established venue where trained and experienced persons could oversee the husband’s conduct and interaction with both children. I have found that ongoing supervision remains appropriate notwithstanding the husband’s blunt refusal to acknowledge or comply with any such order.
In considering the additional considerations in s 60CC(3), the trial judge did not have regard to the wishes of the children “given that they are not of an appropriate age”, and therefore did not accept the evidence the husband sought to rely on of “the many and varied comments which his daughter was purported to have made against her mother”. (s 60CC(3)(a)). ([111], Reasons 3.2.11).
The trial judge found the wife to have “a very close loving and secure relationship with both children” and that the husband had by his refusal to see the children in supervised circumstances “substantially interrupted what otherwise may have been a good relationship with the children”. His Honour also found that the husband’s parents “would likely have had a limited but good relationship with the children who would no doubt respect them as the husband’s parents”. (s 60CC(3)(b)). ([112], Reasons 3.2.11).
His Honour found that it would be a “disastrous scenario” to separate the children from the wife and to make orders as sought by the husband because of the wife’s “care, devotion and time spent with them over their lifetime.” In contrast, the trial judge said there was no evidence which he was willing to accept that the present separation of the children from the husband by his choice in not complying with court orders has had any serious impact upon them. ([114], Reasons 3.2.11).
His Honour then found that the wife had “largely excelled” in her capacity as a parent and her attitude to the children and responsibilities of parenthood, whereas the husband had “unfortunately … walked away from his primary responsibilities and remains separated by his choice from the children”.
(s 60CC(3)(i)), (s 60CC(3)(d)). ([115], Reasons 3.2.11).
So far as family violence (s 60CC(3)(j)) was concerned his Honour said:
116.All of the family violence issues have otherwise been considered in depth throughout these reasons for judgment and they are a primary factor and concern and have played a very significant role part in the reasoning and orders finally pronounced.
Then in relation to s 60CC(3)(l) his Honour stressed that “[t]his family needs finality”. ([117], Reasons 3.2.11).
Turning then to s 60CC(4) which at that time focussed on the fulfilment of parental responsibility, his Honour referred to the husband’s “ongoing failure to willingly pay assessed child support” with substantial arrears remaining. ([118], Reasons 3.2.11). He concluded that the father should have paid child support from the date of assessment according to his salary and he made the following finding.
119.… The fact that he has failed to so do, the quantum of the arrears and the many hearings on child support payments highlight a reluctance or refusal by him to fulfil his responsibilities as a parent. I find that payment is now only made because of the enforcement order. This failure to pay child support over such a lengthy period is a factor to which I have given weight in my reasoning and orders pronounced.
His Honour then turned to consider in great depth the evidence of the husband and wife and the other witnesses. This consideration can be seen to provide the basis for many of his earlier findings under s 60CC and for many of his orders including that the children live with the wife and have only supervised time (at least initially) with the husband. We now provide a summary of his Honour’s findings regarding the witnesses and their evidence, particularly in so far as those findings provide the basis for the orders made by his Honour, and in this context we will continue to refer to apparently relevant grounds of appeal.
From [120] to [164] of his reasons his Honour recorded his observations of the husband and made findings in relation to various claims made by him. We will now summarise this material from his Honour’s reasons, and we point out that Grounds 33 to 45 are directed to this part of his Honour’s reasons. However, those grounds do not establish any appealable error; rather they essentially set out the husband’s disagreement with his Honour’s conclusions and findings contained in the paragraphs in question.
His Honour found the husband to be “very structured, well organised and self-focussed” who had “very capably represented his interests and argued vigorously for his orders”. ([126] & [127], Reasons 3.2.11). His Honour went on to say that the husband clearly “perceived himself as a victim of the Department of Human Services, of social workers, the court system and generally of the wife and all those to whom she had turned for help”. ([127], Reasons 3.2.11). His Honour found it unfortunate that the husband demonstrated no insight or understanding of the “very real trauma and difficulties to which he has previously subjected the wife and the children”. The husband denied family violence on his part and always alleged that the children were subject to the violent behaviour of the wife or others. ([128], Reasons 3.2.11).
At this point in his reasons ([129]) his Honour made some observations of the husband’s parents, although he returned to discuss them more fully later in his reasons at [212]-[225].
His Honour found the husband’s parents to be “solid, respected and hardworking persons who have raised a large and extended family”. His Honour concluded that “they are not suited to be the day-to-day guardians or carers for the children” and that “[t]hey most certainly cannot offer to the children the full-time care, love and support and involvement in their day-to-day life as does their mother” ([129], Reasons 3.2.11). His Honour concluded that the husband’s proposal for his parents to care for the children while he is at work “was inappropriate and clearly not in their best interests”. ([129], Reasons 3.2.11). His Honour also observed that neither the husband nor his parents were able to make any positive comments about the wife. ([130], Reasons 3.2.11).
Then returning to his assessment of the husband, his Honour found the husband to have little or no concept of understanding of the best interests of the children. At [131], his Honour said of the husband:
… He was difficult and vindictive in his approach and attitude to the wife and gave her no understanding or credit for the difficult circumstances in which she lived with him and in the way in which she has cared, managed and promoted the welfare and best interests of the children post-separation.
His Honour reiterated his finding that the children did not have a meaningful relationship with their father. He noted that the husband had not seen the children for a year before the matter was before him, except on one occasion with the Family Consultant.
His Honour concluded from all the evidence before him that the husband had “drunk to excess on many past occasions” and that this consumption of alcohol was “aligned to many of the past occasions of conflict and abuse which arose within the marriage”. ([134], Reasons 3.2.11). His Honour foreshadowed making an order that the husband not consume alcohol during and in the 24 hours prior to his seeing the children – although his Honour noted that this would be predicated on the husband accepting that the recommencement of time with the children would need to be supervised. However, his Honour also noted that the husband’s evidence is that he will never accept any such conditions which are both unnecessary and unwarranted in his eyes. ([134], Reasons 3.2.11).
His Honour noted that it was common ground between the parties that there was a total lack of communication with each other. His Honour found that the lack of any communication between the parents and the violence within the family “wholly negates any equal shared parental arrangement being put in place” ([135], Reasons 3.2.11).
His Honour next considered the husband’s rejection of the evidence of the Family Report Writer, Mr U of a former colleague, Ms AS, and of a social worker, Ms B, and his Honour can be read as rejecting the husband’s criticisms of the evidence of those witnesses. ([136]-[142], Reasons 3.2.11). As will be seen, his Honour returned to explain more fully the evidence of those witnesses later in his reasons.
His Honour then turned to the issue of the court orders for psychiatric assessment of both parties. His Honour noted that he had evaluated the psychiatric report of the wife who attended upon a psychiatrist, Dr D, and that the husband had failed to attend Dr D, having claimed he did not have the money to pay for the consultation and report. His Honour rejected the husband’s explanation because of the husband’s income and the importance of the report being available to the Court. ([143], Reasons 3.2.11).
Then in relation to the need for a psychiatric assessment of the husband and for any time with the children to be initially supervised, his Honour said:
144.I am asked by the wife and the Independent Children’s Lawyer to restrain the husband from issuing any proceedings unless and until he has completed the intake assessment process for the [G] Contact Centre, has enjoyed a period of supervised contact and has filed a psychiatric assessment of his state of mental health. The husband wholly rejected the need or requirement for any such order. I have carefully considered this injunctive issue. The husband is not a vexatious litigant. He has conducted these proceedings with a level of respect for the Court and with much hard work and focus on his issues. However he is adamant that he will never subject himself to any supervised time with the children and is highly critical of all organisations and persons who have offered assistance or guidance to the wife. The likely issue is therefore that because of his absence from the children, his past conduct and the continuation of the family violence orders then he should not hope to achieve a recommencement of time with his children other than initially on a supervised basis. If he remains wholly opposed to that scenario and for so long as the wife devotes herself to the care and wellbeing of the children then parental and children’s proceedings would be of little merit and otherwise would occupy court time when the outcome would most likely be a reinforcement of the orders that I have now made.
145.For those reasons I have pronounced an injunction against the husband issuing further proceedings of a like nature unless and until he has accepted the necessity of commencing his time with the children on a supervised basis, at an appropriate venue, or unless a court otherwise determines.
Next his Honour referred to the three occasions on which the husband over-held the children after spending time with them. His Honour said:
148.… Again each of these over-holding examples highlight the husband’s failure to understand the importance of the mother to these children and certainly he has little or no willingness or ability to facilitate or encourage a close relationship between both children and their mother (s 60CC (c)) (sic). That is an additional consideration of importance. It perhaps is best understood by the wholly unrealistic approach and attitude of the husband to now expect, after the past twelve months, that any court would restrict these children to seeing their mother on a supervised basis for five hours in a week.
His Honour recorded that the husband had strongly objected to his legal representation in April 2009 and had maintained that his former barrister did not represent his interests or instructions. His Honour concluded that he could not find any credible evidence to support the husband’s assertions. ([151], Reasons 3.2.11).
In relation to the husband’s belief that there is a conspiracy against him perpetrated by the Department of Human Services, Connections, various police officers, his previous lawyer and the Independent Children’s Lawyer ([154], Reasons 3.2.11), his Honour concluded that on the evidence before the Court “the husband has not been oppressed or treated unfairly by the professionals or organisations assisting the wife.” ([155], Reasons 3.2.11). His Honour was “satisfied that their focus is and has been the best interests of the children and providing a level of care and protection for them and substantially assisting their mother in that regard”. ([155], Reasons 3.2.11).
A little later in his reasons, his Honour noted the husband’s inability to acknowledge the “fine performance and attendance record of [S] in her first year of school”. His Honour recorded that the husband has had no contact or discussion with the school and had made an application to another primary school. His Honour concluded from these actions that the husband had ignored the child, S’s, good performance and enjoyment at her current school and to move S from her current school would be contrary to her best interests. ([156], Reasons 3.2.11).
In relation to the husband’s allegations that the wife is engaged in “black magic”, casting spells on the husband and his family, his Honour did not accept the husband’s concerns as proper or valid, having noted that much of the evidence was hearsay and inadmissible. His Honour recorded that there was an issue about a community priest, ES, and that the wife had agreed not to take the children to that person again. An order (Order 20) was made by Young J “to enforce that position”. ([157] and later at [193]-[194], Reasons 3.2.11).
The husband now appeals that order but has not provided submissions as to precisely why he appeals this order, although it appears from Ground 44 that the husband may consider that there are links between the priest, ES, and black magic. The husband does, however, seek an order in his amended notice of appeal and in his summary of argument that the wife, her servants and agents be restrained from engaging in or involving the children in black magic (Order sought 17 in amended notice of appeal and Order sought 53 in summary of argument).
His Honour then made the following comments in relation to his orders concerning the issuing of the son’s passport and delivery of the children’s birth certificates to the wife:
158.The husband strongly opposed the issuing of a passport for his son or for the wife holding the passports for both children and he did not want her to travel overseas, particularly to Fiji for a holiday. The husband holds the original birth certificates of both children and, for the purposes of the wife’s application for a passport and as she has been granted sole parental responsibility then those documents should forthwith be delivered by the husband to her. I have so ordered. On the passport issue and overseas travel I have listened carefully to the husband and his objections but there are no valid proper or understandable reasons why the orders sought by the wife should not be made and I have done so.
In relation to the orders made concerning the husband’s time with the children, his Honour said:
160.I have pronounced orders that preserve to the husband the right and opportunity to spend time with his children, but only in the supervised environment of the [G] Contact Service. He must immediately complete the process to be so registered and then wait his turn and commence supervised time. I will fix a period of four months as the appropriate re-establishment period with his children and if the husband fully complies with these conditions and establishes a good relationship with the children which can then be proved to the satisfaction of a court then issues of expanded time spent with the children could be considered upon proper material filed and served. Of course the husband would have to file his psychiatric assessment and otherwise comply with the orders that I have pronounced.
161.What I intend to achieve by my children and parenting orders is to facilitate a situation where the husband can spend time, albeit initially limited and supervised, with the children and look forward to a more secure and developed relationship with them in future years. That decision is his and I record that he formally rejected in his evidence and submissions any compliance with past or like orders.
His Honour determined to make no telephone contact orders. He recorded that he made this order “somewhat” reluctantly and that this was “a matter that should be under review by the parties in any future out of court discussions”. His Honour had earlier noted the “very real concern”, expressed by the wife and the Independent Children’s Lawyer, that there was no way “to monitor what might be said to the children and that they could be subject to coaching by the husband or inappropriate comments made by him about the wife”. ([164], Reasons 3.2.11).
Then in relation to the wife and after making some observations about her background and her living arrangements, his Honour went on to explain the orders he had made to remove the children from the Airport Watch List, being satisfied that both parents will live in Australia and that is their future residence. ([174], Reasons 3.2.11). As the wife would have the security of the passports, his Honour said he did not need to make an order restraining the husband from removing the children from Australia. ([176], Reasons 3.2.11). The wife, however, was ordered, among other things, to provide the husband 21 days written notice of any intended departure from Australia. ([175], Reasons 3.2.11). His Honour declined to make an order sought by the husband that the wife pay a bond of $50,000 to an interest bearing account prior to any departure of the children from Australia for the purposes of a holiday. His Honour was satisfied that the wife would return to Australia with the children. ([177], Reasons 3.2.11).
Having said that he had evaluated the evidence of the other lay and professional witnesses, his Honour found the wife to present as “a very good, committed and concerned mother”, and he continued:
178.…I am satisfied that she would always maintain a primary responsibility for the health, well-being and welfare of both children. I find that she presents no risk whatsoever to the children and I have concluded that, in the best interests of the children she should be their primary parent. I record that I have therefore rejected all of the allegations made by the husband and his evidence of and surrounding the alleged issues of the wife’s mistreatment or abuse of both children.
His Honour then said that he accepted the wife’s evidence that “the marriage was characterised by family violence, verbal abuse and harassment of her by the husband” ([179], Reasons 3.2.11), and also her evidence that the husband hit her often and did so carefully as to not leave physical marks from such violence. ([180], Reasons 3.2.11). In relation to the “numerous violent incidents alleged against the husband”, his Honour found both those events occurred and “were properly identified by the wife in her evidence”. ([181], Reasons 3.2.11).
His Honour accepted the wife’s evidence that she was not abusive to her parents-in-law, and he found that she had “not made any threats to harm or kill the children” and that she had “not actively manipulated the children against their father or his family”. ([183], Reasons 3.2.11).
In relation to the wife’s evidence about the husband videoing the children and incidents in the home, his Honour said he had “no doubt the husband was calm and focussed in his efforts to provoke or upset the wife or obtain a video image of events which could be viewed by others to support his cause.” The trial judge did not accept the husband’s claim that his videoing of the family was for a different purpose. ([185], Reasons 3.2.11).
Importantly given matters raised by the husband before us (including Ground 46), his Honour recorded that there was no application maintained before him to play the various video recordings or read the translation of their voice contents. Given that the husband did not challenge the contents of the wife’s evidence (at paragraphs 29-32 of her trial affidavit), his Honour concluded that he “would most likely not have permitted any such translation documents to be tendered in evidence”. ([186], Reasons 3.2.11). His Honour concluded that “none of the video material would have assisted me in a determination of orders that are in the best interests of the children”. ([187], Reasons 3.2.11). We find no error in his Honour’s approach to the issue of the videos. We would add that videos are generally of very limited assistance in parenting proceedings because they provide little more than snap shots of the family in question at various periods of time.
The husband further complained that the trial judge, in determining contributions, also took into account alleged violence by him against the wife. We have already considered this complaint and determined that there is no merit in it.
Ground 64
The first two sentences of this ground were as follows:
In p190 to p202 [in which the trial judge discusses the relevant s 75(2) matters], the Judge’s (sic) perceives many things as he wishes, those are not evidences (sic) and his own inferences that he made. Unfortunately, the LAW (sic) does not allow inferences in cases where sufficient evidences (sic) are available to make proper and just judgements. …
The expression in the ground continued in similar vein which it is unnecessary to further set out.
Overall this is a complaint about the trial judge’s consideration of the relevant matters pursuant to s 75(2) of the Act, the essence of the complaint being that his Honour has not made a just and proper order.
The trial judge considered that the following matters were relevant to the husband pursuant to s 75(2):-
·the husband worked full time as a supervisor for a firm;
·his gross salary was $66,000 per annum;
·the husband supported his parents by providing them with accommodation and by paying $100 per week expenses on their behalf;
·the husband was in good health; and
·the husband had paid for his own legal costs until he became self-represented.
The trial judge considered that the following s 75(2) matters were relevant to the wife:
·the two young children lived with her, and she supported them with Government benefits and the child support of approximately $250 per week paid by the husband, her total gross income being approximately $675;
·the wife lived in social housing;
·it was reasonable given the ages of the children and the fact that the wife has no family support in Melbourne that she not work for perhaps several years;
·for a period the wife had legal assistance at no cost provided by Victoria Legal Aid and $21,279 was paid to Victoria Legal Aid from the proceeds of sale of the home and
·the wife would have to pay further legal costs in the amount of $54,130.
As indicated above, his Honour determined that upon his consideration of those matters, it was proper to adjust the non-superannuation assets by 15 per cent in favour of the wife so as to achieve a just and equitable order as required.
This Court said in Clauson and Clauson (1995) FLC 92-595; (1994) 18 Fam LR 693 that it is appropriate when considering what adjustment to make taking account of relevant s 75(2) matters, to give appropriate regard to what the adjustment would mean in money terms. In that case (at page 81,911, FLC, and page 710, Fam LR) the Full Court said as follows:
There is, we think at times a tendency to assess s.75(2) factors in per centage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s.75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.
We have previously referred to his Honour’s observation at [134] of his reasons, that he was particularly concerned that payment by the wife of her legal costs and disbursements totalling $54,130 would substantially impact upon the benefit of the monies she would receive from the division of the property in her favour.
In our opinion his Honour has acted correctly in giving due regard to the relevant s 75(2) matters not the least of which is the reality for the wife of having to pay her legal costs and what impact that would have on what she received as her property settlement.
The pool of available property was very modest. In our view, a 15 per cent adjustment in these circumstances, while falling within the appropriate range, was quite modest.
There is no merit in this ground.
Ground 65
This ground asserts that the orders benefit only the wife and her lawyers and do not benefit the husband or children. The husband submitted that the orders should be set aside and there be a retrial.
This is a submission and it raises no appealable point.
Ground 66
This is a complaint that in earlier proceedings, Young J called the husband “a martyr”.
Clearly this complaint raises no competent ground of appeal.
Application to Adduce Further Evidence in the Property and Child Support Appeal
The husband applied for leave to adduce various items of further evidence in support of the property and child support appeal, and which are to be found in or annexed to the husband’s affidavit sworn 15 September 2011. After hearing submissions from the husband and from counsel for the wife, we reserved our decision about this application.
The first item of further evidence which the husband sought leave to adduce was the video recordings and transcript of them which he had also sought leave to adduce in the parenting proceedings. He submitted that the relevance of these recordings would be that they would demonstrate that his Honour was in error in finding that he had been violent to the wife. This was a matter taken into account by his Honour in assessing the parties’ contributions in the property proceedings.
As indicated above, we have dealt with a similar application in the parenting appeal. For the reasons set out in relation to that application, we do not propose to grant the leave as sought in relation to the property appeal.
The second item of further evidence which the husband was seeking leave to adduce consisted of various emails. These were the documents set out at Annexure JP6 to his affidavit sworn on 15 September 2011.
The husband submitted that this new material would demonstrate untruthfulness on the part of the wife. The emails related to the husband’s endeavours to obtain the release of $5,000 from the deposit paid by the purchaser of the former matrimonial home, as previously ordered by Young J The husband asserted that the wife had informed his Honour that only one email had been received from the husband about this matter. He submitted that the set of emails, if permitted to come into the evidence now, would establish that the wife’s solicitors had in fact received numerous emails from him in relation to the matter.
We do not propose to give leave to admit the emails. Each of the emails in the set had been in existence at the time of the trial and must have been on the husband’s own computer and available to him at that time. He could have used them in cross-examination and sought to tender them into the evidence at the trial. It is too late to seek to put the material into the evidence now.
The third item of further evidence sought to be adduced comprised a passage in what the husband said was an affidavit by the wife, and it was set out at Annexure JP7 to the husband’s affidavit sworn on 15 September 2011. The husband submitted that this material would demonstrate the untruthfulness about certain of the wife’s evidence about owing money to her sister and other matters.
We do not propose to give the leave sought in relation to this item. As was indicated to the husband during the appeal hearing, this material existed at the time of the trial and would have been available to him to use during his cross-examination of the wife and to suggest to her that she was being untruthful. In these circumstances, it would be quite inappropriate and unfair to the wife for it to come into the evidence at this late stage.
The last item of further evidence the subject of the application for leave to adduce was set out at Annexure JP8 to the husband’s affidavit sworn 15 September 2011. This was part of a Westpac Banking Corporation statement about the parties’ home loan account. The husband asserted that during the trial the wife had said that he had failed to pay the mortgage repayments to the extent that the mortgage had fallen into arrears of $10,000. He said that the statement which he now wanted admitted into the evidence would show that this was not correct and that the arrears had never exceeded the sum of two repayments.
As was the case with the other material in respect of which we have declined leave, the Westpac statement would have been available at the time of the trial. This was put to the husband during the hearing and he was asked why he did not obtain the statement at that time. He replied to the effect that there was no time and that he had difficulty gaining access to a computer printer.
Putting aside the assertion about what the wife might have informed the trial judge, as well as the question whether the proposed new evidence might assist in any event, his Honour was in our view in no uncertainty about the history of the mortgage repayments and the fact that the settlement details for the sale of the home made it clear that the mortgage had fallen two payments into arrears.
This is clear from the following paragraphs of his reasons:
72.The husband negotiated with Westpac to pay only 50% of the mortgage instalments in the years 2009 and 2010. It was the arrears accumulated as a result that then required the release of part of his superannuation monies to be obtained and paid out in discharge of accumulated liabilities. Exhibit “HP5” is a letter from the conveyancing firm engaged by the parties advising as to the particulars of the Westpac mortgage liability as at 11 December 2010. The loan was then a further two months in arrears, that is for the months of October and November of 2010. A default interest rate of 9.16 per cent per annum was then applicable, and that was 2 per cent greater than the home loan rate that would have applied if all payments were current.
In these circumstances, we do not propose to give leave for the document to be admitted into the evidence.
Accordingly, the husband’s application for leave to adduce further evidence in support of the property appeal will be dismissed.
Conclusion in relation to Property and Child Support Appeal
Despite the very considerable number of grounds of appeal asserted by the husband the only basis for appellate intervention is in relation to Order 5 of his Honour’s orders which deals with the wife’s jewellery. The appeal will be allowed in part.
We shall re-exercise the Court’s discretion and amend this order to remove therefrom the obligation for the husband to deliver the necklace and bracelet(s) to the wife’s solicitors.
Re-instated Appeals against the costs orders of 6 July 2011 & 26 July 2011
It will be convenient to address together the re-instated appeals against the costs orders made respectively on 6 July 2011 and 26 July 2011.
On 6 July 2011 an application, filed on 1 June 2011 (possibly on 27 May 2011), by the husband for a stay of the parenting and property orders which he had appealed, and also for orders releasing certain monies to the parties from the proceeds of the matrimonial home, was listed for hearing before Young J. The husband did not appear on that occasion but the wife was represented by her solicitor.
His Honour proceeded to make orders for the payment of certain monies which he described at [17] of his reasons given that day as being for the benefit of both parties. However, he declined at [18] to make an order sought by the husband for the release of monies to pay interest on a Mastercard debt. His Honour then continued:
19.I otherwise dismiss the orders sought by the husband in his Application in a Case filed 1 June 2011. I will do so, however, subject to granting the husband a period of fourteen days to apply, at his cost and expense, to reinstate his interim Application in a Case, but only upon material properly filed and served. The husband should appreciate that any such Application would likely be opposed by the wife and, in the event that he is unsuccessful in any reinstituted application, may lead to a further costs orders being made against him. However, that is a matter upon which the husband must carefully reflect before issuing any further Application.
20.I dismiss the balance of the orders sought by the wife in her Response save as to the $5,000 and consequential costs orders sought that I consider to be just as a consequence of the non-appearance of the husband at Court on this day.
…
22.I regard the quantum of costs sought by the wife’s solicitor as modest and I will order that $475 be paid by the husband to the wife prior to any distribution of monies to him pursuant to the final property and financial orders. …
It will be seen that the only reason given by his Honour for that costs order was the non-appearance of the husband that day.
By an amended notice of appeal filed on 5 August 2011 the husband appealed against the order for costs made against him on 6 July 2011. Unfortunately the grounds of appeal contained in the amended notice of appeal could not be said to be competent or apparently relevant grounds in relation to an appeal against the costs order in question. We will return to this appeal after referring to the re-instated appeal against the costs order made on 26 July 2011.
As a result of an application (or applications) filed by the husband on 13 July 2011, the matter again came before Young J on 26 July 2011. At that hearing the husband appeared on his own behalf and the wife was represented by Counsel. His Honour recorded at [1] of his reasons for judgment delivered that day that he accepted that the husband’s failure to appear on 6 July 2011 had been an oversight on the part of the husband.
It appears that on 26 July 2011 the husband sought the re-instatement of his application which had been before the court on 6 July 2011 and that he also relied on an amended application filed on 13 July 2011 seeking further orders in addition to those sought in the earlier application.
His Honour summarised the orders which he proposed to make on that day as follows:
14.In summary, then, I will order that the husband’s application be reinstated. I will permit a payment of $11,000 to the husband as a part payment of his property and financial entitlement pursuant to the orders of 8 March 2011, and will authorise those moneys to be paid from the Commonwealth Bank joint account …. I will not make any payment for arrears in child support. That was foreshadowed by [Counsel for the wife] on a saving of interest charges to the husband, but he is opposed to that course of action. The husband challenged the payment and quantum of child support and I do not have sufficient evidence before me, and in any event it has arisen only in the submissions of counsel this day, and they are not matters that I would act upon in these proceedings.
Then in relation to costs his Honour said:
15.I ordered costs against the husband last time in a modest sum of $475. That sum was to be paid out prior to any distribution of money to him, as I provided for in order 6 of the orders of 6 July 2011. It is clear the only reason that this hearing was required today is because the husband was not here, in court, present on the previous hearing date because of his own inadvertent mistake. The wife should not pay or be responsible for her costs of that mistake, however innocent it may have been.
16.The principle enshrined within s 117 of the Family Law Act 1975 (Cth) is that each party should bear their own costs of, and related to litigation in this Court. That however is subject to s 117(2) which provides that a court may make an order for the payment of costs if it considers that it is just to do so. The factors to be considered are clearly identified in s 117(2A) and I have had regard to each of those matters. I am acutely aware of the financial circumstances of each of the parties. I have assessed the conduct of the parties, and particularly that of the husband in the proceedings and his non-appearance when his Application was first listed before the court on 6 July 2011. I balance those considerations with the fact that I have determined that a sum of $11,000 is to be paid out to the husband in part payment of the husband’s property and financial entitlement pursuant to the orders of 8 March 2011. The wife has not been unsuccessful in these proceedings as the husband’s application for a stay has not been ordered by the Court.
17.I intend to make an order for costs fixed in the sum of $1,000 today, which are less than the amount claimed by [Counsel for the wife] of $1,320, as this matter has occupied only seventy minutes of the Court’s time. Likewise, the order for those costs will be made on the basis of that sum being paid out prior to any distribution of money to the husband pursuant to the orders of 8 March 2011. …
His Honour then made the foreshadowed orders for the payment of $11,000 to the husband out of the joint account and for the payment by the husband of the wife’s costs fixed at $1,000.
By a notice of appeal, filed 5 August 2011, the husband appeals the costs order (Order 3 of the orders of 26 July 2011). Again, unfortunately the husband’s grounds of appeal are not competent grounds of appeal, but traverse many matters which do not assist us in addressing whether or not there was appealable error in the making of the costs order.
On the material before us we cannot detect any error in the second order for costs made by Young J, particularly having regard to the warning given by his Honour to the husband in [19] of his reasons for judgment of 6 July 2011.
We do however have concerns about the costs order made on 6 July 2011.
This was not a case in which because of the husband’s failure to attend court on 6 July 2011, the matter could not proceed. The matter did proceed on that day, and an order was made for a payment which his Honour said would benefit both parties and another order was made for a payment of $5,000 to the wife for which she had made an application.
Notwithstanding the unsatisfactory nature of the husband’s grounds of appeal directed to the costs order made on 6 July 2011 and to the highly discretionary nature of a costs order, we nonetheless consider, particularly having regard to the husband’s unrepresented status, that the interests of justice require us to set aside Order 6 of the orders made on 6 July 2011.
Costs of the Four Appeals
At the conclusion of the hearing of these appeals we received oral submissions in relation to the costs of these appeals.
Essentially each party sought orders for costs in their favour if their case on appeal was successful, and each resisted any order for costs if unsuccessful.
So far as the costs of the appeals against the costs orders made on 6 July 2011 and 26 July 2011 are concerned, we are of the view that there should be no order for costs in relation to those appeals; in other words, each party should bear their own costs of those appeals. We take this view because the appellant husband has succeeded in relation to one of those appeals and the respondent wife in relation to the other. We also take into account that there would have been minimal work involved and thus minimal costs incurred in relation to those appeals.
However, in relation to the appeals against the parenting orders and against the property and child support orders we have not yet finalised our consideration.
If we decided to make an order that the husband pay the wife’s costs on the basis of the overall success of the appeals and on the basis of the work that would have had to be done by the wife’s legal advisers because of the length of the husband’s grounds of appeal and summaries of argument, we might require that the wife’s costs (as agreed or assessed) be paid out of the proceeds of sale of the matrimonial home prior to any distribution yet to be made to the husband out of that fund.
However, as neither party has been heard in relation to such a possibility, we propose to give the wife a period of 28 days to provide brief submissions (of no more than two pages) in relation to that proposal, with the husband to have a further 28 days to provide brief submissions (again of no more than two pages) in relation to that proposal and also in response to the wife’s submissions. We would also require that the submissions from the wife be accompanied by a bank statement in relation to the account in which the funds in question are held, together with a copy of any child support notices or other like notices which may relate to payments required to be made out of the fund before any payment to one or both parties.
The delivery of this judgment
On 11 October 2012 the husband wrote to the Appeal Registrar asking that the Full Court be informed that he would “not be available from 26 October until 6 November” and he requested the judgment be delivered “outside the said times.”
Late on the afternoon of 24 October 2012, the Appeal Registrar attempted to telephone the husband to advise him that the judgment would be delivered on the following day (25 October 2012). However, the husband did not answer the telephone nor was there any facility for a message to be left.
Therefore this morning the Appeal Registrar sent emails to the husband at the two email addresses, which have been provided by him to the court, advising him that the judgment would be delivered at 4:15pm today (25 October 2012) and that there was no need for an appearance by any party. The Appeal Registrar requested confirmation of receipt of the emails.
No response to the emails had been received from the husband by 4pm today. We have nevertheless decided to deliver this judgment today with arrangements having been made for it to be emailed immediately upon delivery to the husband and to the solicitors for the wife.
I certify that the preceding five hundred and forty six (546) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn and Johnston JJ) delivered on 25 October 2012.
Associate:
Date: 25 October 2012
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