Pitter & Baier (No 2)
[2024] FedCFamC1A 197
•25 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pitter & Baier (No 2) [2024] FedCFamC1A 197
Appeal from: Baier & Pitter [2024] FedCFamC2F 586 Appeal number(s): NAA 124 of 2024 File number(s): BRC 16352 of 2022 Judgment of: RIETHMULLER J Date of judgment: 25 October 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appellant challenges jurisdiction of the Court – Pseudolegal arguments dismissed– Where the appellant was not denied procedural fairness when he failed to put evidence forward at trial – Where appellant did not engage in family report process – Where appellant is critical of primary judge for not pursuing evidence on his behalf –No grounds of appeal established – Appeal dismissed.
FAMILY LAW – APPEAL – PARENTING –Unacceptable risks – Risks warranting supervision – Nature of risks not limited to “immediate” risks – Risks that are not “immediate” can be unacceptable as can risks from insidious behaviour over time – Primary judge correct to order supervision to ameliorate risks.
Legislation: Admiralty Act 1988 (Cth)
Family Law Act 1975 (Cth) ss 65D, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 132, 256
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)Cestui Que Vie Act 1666 (UK)
Sedition Act 1918 (US)
Trading with the Enemy Act 1917 (US)
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Cruden v Neale, 2 N.C. 338 (1796)
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Pitter & Baier [2024] FedCFamC1A 86
Planck & Planck [2024] FedCFamC1F 341
Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 42 Date of hearing: 15 October 2024 Place: Sydney Counsel for the Appellant: Litigant in person Counsel for the Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Lawrence Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
NAA 124 of 2024
BRC 16352 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PITTER
Appellant
AND: MS BAIER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
25 OCTOBER 2024
THE COURT ORDERS THAT:
1.Leave to appeal from the orders of 30 December 2022 be refused.
2.Appeal NAA 124 of 2024 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pitter & Baier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
This case concerns parenting arrangements for two children, X and Y, born in 2018. The parties had separated in 2021, and the children have lived in the care of the respondent since that time.
The respondent sought orders for sole parental responsibility and for the children to live with her. The appellant also sought sole parental responsibility and for the children to live with him. The appellant was self-represented at trial, despite an order being in force pursuant to s 102NA of the Family Law Act 1975 (Cth) that prevented the parties from personally cross-examining one another and the consequential availability of funding for legal representation pursuant to the Family Violence and Cross-examination of Parties Scheme.
BACKGROUND
The appellant challenged the Court's jurisdiction relying upon pseudolegal arguments. This challenge was rejected by the primary judge: at [90]-[101].
The primary judge found that the appellant posed an unacceptable risk of harm to the children based upon a number of reasons set out in the judgment, including:
(a)The appellant’s view that the children were his property, referring to the five-year-old children as his "young women" and "property" (at [62],[63], [133] and [156]);
(b)That the appellant was impulsive and lacked insight into the impact of his actions on the children (at [128],[137]-[139]), for example:
(i)He had previously kept the children from the respondent for seven days without her consent (at [128]);
(ii)Leaving the children unsupervised when overwhelmed (at [138]); and
(iii)Driving dangerously with the children in the car (at [139]).
(c)Concerns about the appellant’s mental health and potential drug use (at [130]-[132], and [137]); and
(d)The appellant’s failure to meaningfully engage in the court process, including not participating in the Family Report or completing court-ordered programs (Expert Report of Dr F dated 14 June 2023 at paragraph 42; [79] and [124]).
In contrast, the primary judge found the respondent to be a capable and loving parent with no substantiated risks concerning her care of the children: at [117]-[123].
The primary judge made orders for the respondent to have sole parental responsibility: at [161]-[163], for the children to live with the respondent: at [164]-[167], and the appellant to have supervised time with the children, conditional on completing a parenting program and drug testing: at [168]-[170]. The primary judge also made restraining orders preventing the appellant from approaching the respondent's residence or the children's school: at [173]-[175].
The trial judge concluded that these orders were in the best interests of the children, prioritising their safety and stability while maintaining some relationship with the appellant under controlled conditions: at [180].
GROUNDS OF APPEAL
The appellant sets out six grounds of appeal. Grounds 3 and 6 are dealt with first, as they go to questions of jurisdiction, followed by Ground 1 as it goes to questions of procedural fairness.
Ground Three
3. Procedural Fairness and Right to a Fair Hearing:
•The judge dismissed the father's application for the court to review jurisdiction and related procedural matters without proper consideration, which led to the father's concerns being inadequately addressed during the trial.
•The father was denied the opportunity to fully present his case, including the rejection of key pieces of evidence and the lack of consideration for his mental health assessment and drug testing results, which were allegedly mishandled.
Ground Six
6. Jurisdictional and Legal Misinterpretation:
•The trial judge misinterpreted the father’s legal arguments regarding jurisdiction and the application of sovereign citizen terminology, which led to a dismissal of his legitimate concerns about the court’s authority and procedural conduct.
•The judge did not properly address the legal principles under the Family Law Act 1975 (Cth), specifically the requirements for determining the best interests of the children in the context of the evidence presented by both parties.
The appellant’s Summary of Argument filed 24 July 2024 argues these grounds on the basis of:
(a)“the dismissal of jurisdictional challenges”; and
(b)“the exclusion of critical evidence, such as mental health assessments and drug testing results”.
The appellant’s arguments as to jurisdiction were cryptic, being framed in the style of pseudolegal arguments (see generally Planck & Planck [2024] FedCFamC1F 341).
The appellant purports to rely upon a passage that he said was by Lord Denning in Cruden v Neale, 2 N.C. 338 (1796). Lord Denning was not born until 1899 and was never a member of the Supreme Court of North Carolina. The case appears to have been decided by Williams and Hayward JJ (the unusual arrangements for appeals in those turbulent times are described in Kemp P. Battle, “An Address on the History of the Supreme Court”, 103 N.C. 339 (1889)). The passage the appellant relies upon is not part of the judgment but is reported as part of the argument by one of the lawyers arguing the case. The passage argues that a person is only bound by the laws of nature and not the laws of any institutions formed by his fellow men or women without his consent. This appears to be a summary of a passage from John Locke’s ‘Two Treatises of Government’ (1689) explaining his theory of civil government. Even if the argument of the lawyer were considered an authority (which it is not), the appellant has overlooked that the lawyer in Cruden v Neale, when arguing the case, also said:
When a change of government takes place, from a monarchical to a republican government, the old form is dissolved. Those who lived under it, and did not chuse [sic] to become members of the new, had a right to refuse their allegiance to it, and to retire elsewhere.
The appellant has not chosen to “retire elsewhere” and thus, even on his argument, the appellant is bound by the laws of Australia like all other citizens.
The parties and children are bound by the laws of Australia, and the Family Law Act is the relevant law with respect to parenting issues.
Secondly, the appellant sought to rely upon the Cestui Que Vie Act 1666 (UK). I was unable to identify any rational argument about how that Act (or its modern equivalents) could apply in this case as the appellant was never thought to be dead.
Thirdly, the appellant argues that the case falls within the ambit of the Admiralty Act 1988 (Cth) on the basis that he is a “living man, and captain of [his] vessel navigating God’s holy water”. He is obviously not a “ship” as defined in s 3 of the Admiralty Act and the Act does not deal with parenting issues.
Fourthly, the appellant argued that as the children were created with his DNA, he is able to claim them as his property. No person has property rights over another person in Australia.
Finally, the appellant’s references to the Sedition Act 1918 (US), the Trading with the Enemy Act 1917 (US) or one of the various Trading with the Enemy Acts from the UK (it is unclear which), and what he described as the “Roman cult known as the Vatican establish[ing] the Bank for International Settlements”, make no sense in the context of this case.
The primary judge, as a judge of the Federal Circuit and Family Court of Australia (Division 2), had jurisdiction as a result of s 132 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which confers jurisdiction on that Court with respect to proceedings instituted under the Family Law Act 1975 (Cth). Section 65D of the Family Law Act provides for a court with jurisdiction under the Family Law Act to make “such parenting order as it thinks proper”. The appellant’s arguments concerning jurisdiction are entirely without foundation and must be rejected.
The appellant did not attempt to provide mental health assessments or drug test results at the trial and therefore he was not denied procedural fairness in this respect.
Grounds 3 and 6 must be dismissed.
Ground One
1. Denial of Natural Justice in Handling of Interim Orders:
•The interim orders made on 30 December 2022, which removed the children from the father’s care by police force, were issued without the father’s consent and served under duress. The father’s subsequent response and evidence were not adequately considered in the final judgment.
•The judge did not revisit or appropriately weigh the circumstances under which the interim orders were made, despite the significant impact on the father’s relationship with the children.
The appellant complains that ex parte orders were made removing the children from his care some months before the hearing. On 30 December 2022 a registrar made urgent ex parte orders for the recovery of the children as the appellant had attended at the respondent’s home and taken the children without her knowledge. Interim orders were also made for the children to reside with the respondent, who had been their primary carer since separation. The registrar adjourned the application for further hearing on 30 January 2023 and made directions for the appellant to file and serve a response and an affidavit by 27 January 2023. The children were recovered the same day that the order was made.
On 30 January 2023 orders were made for the preparation of a Child Impact Report and the matter was adjourned. The Child Impact Report was released on 4 April 2023. Interim parenting orders were made by consent on 6 April 2023.
The appellant did not seek a review of the registrar’s orders of 30 December 2022 (see Federal Circuit and Family Court of Australia Act 2021 (Cth) s 256 and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.05). The appellant previously attempted to appeal from those orders, however the appeal was summarily dismissed (see Pitter & Baier [2024] FedCFamC1A 86) as the effect of the interim orders came to an end when final parenting orders were made. Thus, as Austin J pointed out, there was “no longer any justiciable controversy in respect of the interim orders and appellate jurisdiction is exhausted” (at [8]).
The appellant filed no affidavit in support of the application for leave to appeal against the registrar’s orders. No critical review of the decision can be undertaken as none of the material before the registrar when the orders were made, nor the transcript of the hearing, nor the reasons for judgment, are contained in the Appeal Book. In the circumstances described in the judgment of the primary judge (taking the children without the respondent’s knowledge) it is unsurprising that urgent ex parte orders were made. Even if there were an error on the part of the registrar making the ex parte orders it could not have caused the subsequent trial before the primary judge to miscarry. There is no utility in reconsidering the ex parte orders.
The application for leave to appeal from the orders of the registrar must be dismissed. To the extent that it is alleged that the registrar erred, any error was not such as to result in a miscarriage of the final hearing or show error in the primary judge’s reasons.
The ground also alleges that the primary judge failed to take into account the circumstances under which the interim orders were made and the effect of those orders upon his relationship with the children. The primary judge had regard to these events, setting out the history of the interim orders in the judgment together with the appellant’s lack of contact with the children since the recovery orders: at [148].
Ground 1 must be dismissed.
Ground Two
2. Error in Fact-Finding and Weight of Evidence:
•The trial judge failed to adequately consider the video evidence presented by the father showing one of the [children] expressing distress and adult themes at a very young age. This evidence was critical in demonstrating potential psychological harm and the influence of the mother’s boyfriend on the children.
•The judge overly relied on the mother's affidavit and the Family Report, which did not include an assessment of the video evidence or the father’s affidavit rebutting the mother’s claims.
Ground 2 addresses the weight the primary judge placed upon various items of evidence. The function of the appeal court is “not to offer a second opinion” as “[i]t cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge” (Sharman v Evans (1977) 138 CLR 563 at 565).
As Latham CJ said in Lovell v Lovell (1950) 81 CLR 513 at 519 “an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court” (cited with approval by Gibbs CJ in Mallett v Mallett (1984) 156 CLR 605 at 614). In Gronow & Gronow (1979) 144 CLR 513, Stephen J said (at 519) that “The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.” More recently Kirby J noted that the weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show that the primary judge was “plainly wrong” (CDJ v VAJ (1998) 197 CLR 172 at 230–231).
The evidence relied on by the appellant concerns a black eye suffered by one of the children. The primary judge addressed this important issue in her Honour’s reasons:
117 The father alleges that the children are at risk of physical, emotional, and even sexual harm in the mother’s care. No evidence of such harm has been produced or is reflected in subpoenaed material. The father has in the main made bare statements of risk and provided little in the way of evidence. The Independent Children’s Lawyer put the father’s allegations to the mother to allow the evidence to be tested – noting that the allegations were vague and therefore those questions were necessarily vague. The mother became distraught in that process. I am satisfied that her distress was genuine. I am satisfied that she is a good and loving mother, that her parents are good and loving grandparents and that the children are not at risk of harm in the mother’s care. I accept the mother’s denials of the father’s allegations.
…
120 The father gave evidence of seeing a child with a black eye twice in video calls. The mother provided an explanation of playing in the rain when she and the child fell together. I accept her explanation. Further, she has complied with court orders and completed the parenting orders program as recommended.
No video evidence was tendered at the trial, nor did the appellant seek to tender such evidence. The primary judge had the benefit of seeing the respondent cross-examined on the issue (Transcript 4 April 2024, p.34 line 42 to p.35 line 14), explaining that it was an accidental injury that occurred when the child was playing. The appellant made reference in his submissions to a police investigation where the police concluded that the injury was an accident: Transcript 4 April 2024, p.34 lines 15-17. The injury was not of a type that was inconsistent with injuries that sometimes occur during play. The findings of the primary judge were open on the evidence before her Honour. There is no merit in this ground.
Ground Four
4. Failure to Consider Significant Risk Factors:
•The judgment failed to adequately address the father’s evidence of ongoing abusive behavior by the mother’s boyfriend, [Mr C], who had assaulted the father on 2/2/24, indicating a continued risk to the children.
•The court did not give due consideration to the evidence of coercion and grooming of the children to think ill of the father, as demonstrated by their statements and behavior influenced by the mother and her boyfriend.
Whilst framed as a complaint that the primary judge failed to take into account relevant facts, the particulars of this ground show that it is a complaint concerning the weight given by the primary judge to various factors.
There was no direct evidence of an assault by the respondent’s partner (at best, in an unresponsive answer in cross-examination, the appellant claimed that he had made a report to police alleging he had been assaulted: Transcript 5 April 2024, p.137 line 37). There was no mention of this claim in the appellant’s trial affidavit, nor in his Notice to Admit Facts. Nothing was put to the expert concerning this issue when the appellant cross-examined the expert. During addresses the appellant alleged one of the children had said to him “[the respondent’s partner] wants to fight you” (Transcript 5 April 2024, p.181 lines 10-11), however there was no direct evidence of this allegation: at best there was passing reference by the appellant to a video of one of the children in an unresponsive answer during his cross-examination: Transcript 4 April 2024, p.108 lines 2-5.
It is not necessary that a trial judge “mention every fact or argument relied on by the losing party as relevant to an issue”: Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at 132. “Nor is a judge required to make an explicit finding on each disputed piece of evidence”: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA. Having regard to the minimal evidence of any assault, which was not a central issue in the way the case was put, it was not necessary for the primary judge to specifically discuss these matters in the reasons for judgment.
The allegations of “grooming of the children to think ill of the father” were not put to the family report writer, nor raised by the appellant in final addresses, and thus were not matters the primary judge had to consider.
This ground must be dismissed.
Ground Five
5. Misapplication of the Law Regarding Parental Responsibility and Supervised Contact:
•The judge erred in granting sole parental responsibility to the mother and imposing overly restrictive supervised contact conditions on the father without sufficient evidence of immediate risk to the children.
•The requirement for the father to complete a [parenting program] and a hair follicle test, without considering his existing evidence and efforts, was excessive and not justified by the circumstances presented.
After discussing the factors relevant to determining the children’s best interests the primary judge addressed parental responsibility (at [161]-[163]), and then addressed the question of the appellant’s time with the children: at [168]-[171].
Firstly, the appellant argues that the requirement for supervision of his time with the children was not justified as there was no evidence of any “immediate risk”. The nature of the risks that supervision may address is not limited to “immediate” risks. A risk may be unacceptable even though it is not an immediate risk of an acute or catastrophic event. Some unacceptable risks arise from exposure to insidious behaviours over time. Attempting to limit unacceptable risks to “immediate” risks is obviously illogical and simply wrong in law. In this case the primary judge identified many risks (at [137]):
(a) Risk arising from his impulsivity, his lack of insight and his views as to his ownership of the children. I am satisfied that he feels completely justified in removing the children from their mother on the previous occasion. He has expressed no regret for doing so and had no insight into the potential harms that may be suffered by such young children removed from the primary care giver.
(b) His mental health is possibly a risk, but it is unknown to what (if any) extent due to his failures to engage in this process. Certainly, the engagement with a GP and E Hospital in 2021 was voluntary, which is a reassuring sign. Unfortunately, he did not engage with the family report and there is no current mental health assessment;
(c) the unknowns around his drug use;
(d) the unknowns around his living arrangements; and
(e) The language he used when talking about his five year old daughters as “young women” a term of reference commonly reserved for adults.
…
139 … the father’s road rage – driving dangerously with the mother, children, maternal grandmother and maternal teenage aunt in the car.
Secondly, the appellant argues that orders requiring him to complete a hair follicle test and a parenting program were unjustified. The primary judge identified that drug use was an issue in the case. The respondent provided results of hair follicle testing showing no indications of drug use. The appellant had not produced a hair follicle test (despite being ordered to undertake such a test) which, unsurprisingly, led the primary judge to consider that drug use was a relevant risk with respect to the appellant (at [126]). The primary judge then gave reasons addressing why the relevant orders were necessary to meet the children’s needs, stating:
170 It would also mean that the children would benefit from having time with a father who had hopefully gained some insight from the parenting orders program and the protection that a hair follicle test would provide.
Thirdly, the appellant relies upon the Family Report being completed without him being interviewed. This is addressed by the primary judge who accepted that the appellant chose not to attend for an interview with the expert (at [83]), but also noted that the “Family Report was somewhat constrained by the appellant’s failure to engage in the Family Report process and the report itself concedes that as a limitation”: at [79]. The findings were supported by the appellant’s evidence at trial that he did not attend the interviews with the expert as he did not consent: see Transcript 4 April 2024, p.87 lines 25-28. The appellant also argued that the primary judge ought to have ordered another report, in light of him not having been interviewed, however, in light of his evidence and in the absence of an application for a further report there was no basis for the primary judge to make such an order in the context of this case.
This ground cannot succeed.
CONCLUSION
As the appellant has not established any appealable error the appeal must be dismissed.
The respondent was unrepresented on the appeal. Neither the respondent nor the Independent Children's Lawyer sought orders for costs. As a result, I make no orders for costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Riethmuller. Associate:
Dated: 25 October 2024
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