Putina & Putina
[2024] FedCFamC1A 120
•19 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Putina & Putina [2024] FedCFamC1A 120
Appeal from: Putina & Putina [2024] FedCFamC2F 588 Appeal number: NAA 117 of 2024 File number: BRC 9024 of 2020 Judgment of: AUSTIN J Date of judgment: 19 July 2024 Catchwords: FAMILY LAW – APPEAL – Where the father appeals from final parenting orders – Where the father complains of judicial bias – Where the father did not make an application at trial for the disqualification of the primary judge – Where it was the judicial function of the primary judge to form an impression of the father relevant to s 60CC of the Family Law Act 1975 (Cth) – Where the primary judge did not deny the father procedural fairness – Where the father could not demonstrate the primary judge fell into discretionary error – Where the father’s complaint of inadequate reasons are generic and unparticularised – Where several grounds of appeal are mere enunciations of the father’s dissatisfaction with the orders and are rejected – Appeal dismissed – Applications for costs dismissed. Legislation: Evidence Act 1995 (Cth) s 41
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117
Cases cited: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329; [2021] HCA 6
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 49 Date of hearing: 17 July 2024 Place: Newcastle (via Microsoft Teams) The Appellant: Litigant in person Counsel for the Respondent: Mr Leneham Solicitor for the Respondent: Sharma Lawyers Counsel for the Independent Children's Lawyer: Ms Earl Solicitor for the Independent Children's Lawyer: Stewart Family Law ORDERS
NAA 117 of 2024
BRC 9024 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PUTINA
Appellant
AND: MS PUTINA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
19 JULY 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 16 May 2024 is dismissed.
2.The respondent’s application for costs is dismissed.
3.The Independent Children’s Lawyer’s application for costs is 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Putina & Putina has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
By a Notice of Appeal filed on 16 May 2024, the father appeals from parenting orders made on 13 May 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the parties’ child.
The appeal is dismissed for the following reasons.
Background
The parties were married overseas in early-2014 and commenced cohabitation in Australia in early-2015.
Their only child was born in 2016 and is now eight years of age. He was not even three years of age when the parties separated in January 2019.
At the trial before the primary judge, it was common ground the child had only experienced quite limited interaction with the mother since the parties’ separation years before.
Parenting plans into which the parties voluntarily entered in early 2020 broke down (at [6]–[7]), which motivated the mother to commence the proceedings in August 2020 (at [8]). But not even interim court orders could successfully restore the child’s interaction with the mother.
Interim orders made in September 2020, requiring the child to spend time with the mother, were not properly implemented due to the father’s allegations of the mother’s physical abuse of the child and his fear such abuse would be repeated (at [9]–[16]).
More interim orders made in July 2021, requiring the child to spend professionally supervised time with the mother, were not implemented because of objections raised by the father with the supervisor and supposedly due to the child’s alleged refusal to participate, even though he was then only five years of age (at [17]–[19]).
More interim orders were made in August 2022, requiring the child to spend more expansive unsupervised time with the mother, but he did not spend any time at all with the mother after October 2022 (at [20]–[21]).
Nor did the father comply with procedural directions. Neither he nor the child presented for interview with the court child expert in February 2023 (at [23]–[27]).
The parties offered incompatible explanations for the child’s estrangement from the mother. She contended the father and paternal grandparents restricted her interaction with the child so tightly that they thereby tended to spoil his relationship with her. The father asserted the mother could not be trusted with the child because she posed an unacceptable risk of harm to him and because her “mental health” compromised her ability to care for him (at [86]). The father believed the child was in “grave danger” in the mother’s care and, moreover, even he might be physically harmed by the mother and her solicitor (at [26] and [109]).
The trial started in July 2022, but by the time of its ultimate resumption, the mother and the Independent Children’s Lawyer (“the ICL”) proposed orders for the child to live with the mother and for her to have sole parental responsibility for him. They both proposed that the child should not spend any time with the father (at [36] and [38]). The father proposed the child would continue to live with him and he would have sole parental responsibility. He also proposed the child could spend time with the mother on a gradually expanding basis, but only after the child had completed “reunification therapy” with a therapist chosen and instructed unilaterally by him and, even then, subject to the ultimate decision of the therapist (at [37]).
The trial occupied four days spread between July 2022 and January 2024. Written submissions were made in March 2024 and judgment was delivered in May 2024.
The primary judge made orders for the child to live with the mother and for her to have sole parental responsibility for him (Orders 1 and 2), for the child to spend no time with the father (Order 3), for the father to have limited written communication with the child (Order 4), the parties’ restraint from removing the child from Australia (Order 5), and for the orders to be explained to the child by the court child expert (Orders 6 and 7). The orders therefore substantially conformed to those proposed by the mother and the ICL.
Such orders followed upon findings that the father and paternal grandparents had manipulated the child and damaged his relationship with the mother (at [50], [68], [80]–[81], [83], [87], [100]–[101], [111], [130], [132]–[133], [137]–[138], [148], [151]–[157] and [166]), the father had invented allegations against the mother (at [51] and [88]–[89]), and he was indolent about the child’s medical and educational needs (at [71]–[77], [82] and [143]–[147]). In circumstances where it became plain the child would only be able to enjoy a beneficial relationship with one of his parents, the mother was deemed to be the better choice (at [84], [118], [168], [179]–[180] and [187]).
Due to the father’s failure to present the child to the Court registry for the pronouncement of judgment (Notation A), as previously directed by orders made on 9 May 2024, the primary judge additionally made orders for the child’s recovery from the father (Orders 8 and 10). It is common ground the recovery orders have since been executed and the child is now living with the mother.
The appeal
The appeal purports to be brought from all orders made by the primary judge, but that cannot be correct.
Orders 8 and 10 have been executed and are of no further operative effect.
Order 9 is merely a procedural order which does not affect the parties’ rights.
No grounds or submissions were directed to Orders 6 and 7, requiring the child to be presented to the court child expert for explanation of the orders.
The appeal must therefore be confined to the operable parenting orders (Orders 1–5).
Due allowance is made for the father’s lack of legal representation in the appeal, but the grounds of appeal which do not plead a recognisable appealable error will not be addressed. Similarly, the submissions in the father’s Summary of Argument which stray beyond the ambit of the pleaded grounds will not be considered. As an example, several pages of the Summary of Argument are devoted to allegedly mistaken factual findings, yet no ground of appeal can be fairly construed as a complaint of factual error, as distinct from discretionary error. The parameters of the appeal are marked out by the grounds of appeal, not by the content of the Summary of Argument. The father was permitted to address asserted factual errors, but he had difficulty in accepting the proposition that factual findings are not wrong merely because they contradict pieces of evidence he wished to emphasise.
Some grounds raise complaints of bias and the denial of procedural fairness, which are liable to affect the integrity of the trial, so they will be addressed first, as required (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]).
Ground 4
Ground 4 is a complaint of judicial bias, though it is quite unclear from its terms whether the complaint is confined to apprehended bias or extends to actual bias.
The ground is pleaded in this way:
Demonstrated bias including but not limited through apprehended bias, procedural bias, excessive interventions, allowing processes to break a victim of Domestic violence (father) and acting as a surety or bond for one of the parties. In violation of S41 of the evidence act. Incorrect application of law to visitation and parental responsibilities. Further bias demonstrated by selective commentary and attempts to browbeat the witness into submission by judicial officer over the course of the matter.
(As per the original)
It is capable of being answered simply.
The attendant complaints within the ground appear to mostly be allegations of the primary judge’s improper conduct during the trial. In oral submissions, the father referred to dozens of pages of transcript throughout the trial which he said exemplified bias by the primary judge. However, the father was represented by lawyers throughout the trial and his counsel prepared his first set of final written submissions. At no point during the trial, or at any time up until the pronouncement of judgment, did the father or his lawyers make an application for the primary judge’s disqualification, in which event the father must be taken to have waived any application he believed was available to him at the time (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588). To the extent the father may have only just conceived the idea of bias, then it must follow there was no reasonable basis for an “apprehension” of such bias at the time of the trial.
The father referred in oral submissions to paragraphs of the reasons for judgment, in which the primary judge referred to a person being a “getaway driver” (at [103]) and mistakenly said the mother once refused to leave a “driveway” instead of a “balcony” (at [93]), which the father contended were inexact representations of the evidence adduced. However, those paragraphs were seemingly intended to be short-form descriptions of the evidence and, to the extent they were mistaken, such mistakes do not manifest bias.
The father also referred in oral submissions to paragraphs within the reasons for judgment in which the primary judge expressed impressions gleaned of the father’s attitude and presentation at the trial (at [72] and [105]), which he believed demonstrated his Honour’s bias, but the submission is rejected. It was an essential part of the judicial function for his Honour to form such impressions, at least in so far as they affected findings then made about the father’s reliability as a witness and his parenting capacity as relevant to the factors prescribed by s 60CC of the Act.
The ancillary complaints within the ground about the primary judge’s “incorrect application of law” and the “violation” of s 41 of the Evidence Act 1995 (Cth) could only be legal errors. Even if true, simply falling into legal error does not demonstrate either the actual or apprehended bias of the primary judge. Nor will those complaints now be entertained as alleged legal errors because their nature is neither particularised by the ground nor elucidated by the submissions in the Summary of Argument.
Grounds 3 and 9
Grounds 3 and 9 appear to be complaints of the father’s denial of procedural fairness. They are pleaded as follows:
3.Absence of procedural fairness employed in making the orders and additional orders which were unwarrented, where other mechanisms exist to achieve the same outcome without need of recovery orders made through hasty, hurried processes, bypassing principles of procedural fairness. No consideration given to protect the child from trauma.
…
9.Orders against principles of natural justice and designed to frustrate the [father]. Orders not made in good faith by Division 2 of the FCFCOA.
(As per the original)
By implication, Ground 3 relates to the recovery orders (Orders 8 and 10), which have already been executed and are now spent. There is no longer any justiciable controversy over spent orders because, even if they were wrongly made, their discharge cannot rectify the error. The ground can be rejected, either because it is futile or because there is no longer any jurisdiction to entertain the arid dispute over those particular orders (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [32]–[35], [66], [68], [72]–[74] and [91]–[92]).
Ground 9 complains of the “orders” being against the principles of natural justice. The suite of appealed orders was not pronounced until May 2024, so the complaint cannot therefore relate to the fairness of the anterior hearing conducted between July 2022 and January 2024, in which event the doctrines of procedural fairness and natural justice have no application. Such principles of law ceased to apply once the hearing concluded (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 272 CLR 329 at [1]–[4] and [22]).
There is a stray comment within the father’s Summary of Argument to this effect, which was not elaborated during oral submissions:
The judge was unfair by not giving parties enough time to inspect records which had arrived at the last moment and address them properly at trial.
(Father’s Summary of Argument filed 28 June 2024, p.5)
Such “records” are not identified and there is no indication of when they “arrived” at Court or how much time the parties had to inspect them, but the trial went for four days spread over about 18 months, the parties had another two months within which to prepare and file their written submissions, and then judgment was reserved for another two months. In all that time, no complaint was made to the primary judge about an insufficiency of time within which to inspect any documents. Nor was any application made to re-open the evidence to tender more documents.
Ground 5
Ground 5 is pleaded in the following terms and is evocative of discretionary error:
5.Inadequate assessment of available evidence as well as carelessness in reading through the evidence, selective omission and inadequate assessment of parental capacity.
The highest the father’s written submissions rise in support of this ground is this:
…The judge made errors in assessing evidence, disregarded medical advice and evidence, and did not act in the best interests of the child, in fact admitting that they are causing the child harm. …The judge’s decisions put the child at risk and disregarded important evidence. …The judge did not fully consider the absence of an autism diagnosis for the child by long term observers…
…
The thinking and logic of [the primary judge] are being challenged in their entirety as the reasons for judgements will demonstrate the contradictory and often controversial viewpoints of His Honour.
(As per the original)
(Father’s Summary of Argument filed 28 June 2024, p.5 and 7)
In oral submissions, the father referred to several paragraphs within the reasons for judgment with which he disagreed, but his disagreement with the contents of the nominated paragraphs did not impugn the validity of the primary judge’s observations and findings therein.
No material error is demonstrated by either the ground or the submissions.
Ground 6
Ground 6 is pleaded as follows and appears to be a complaint of inadequate reasons:
Inadequate justification provided regarding a decision when authorities contradict the excessively harsh orders imposed.
The same submissions made in support of Ground 5 are made in support of this ground. No error is demonstrated by either the ground or the submissions, as the complaints remain generic and unparticularised.
Ground 2
Ground 2, which is pleaded as follows, may be taken to be an assertion the judgment is manifestly unreasonable or unjust, such that the exercise of discretion must have miscarried (Lovell v Lovell (1950) 81 CLR 513 at 519):
Unjust or unreasonable decision: There are grounds to present to the appeals court that the orders are unreasonable considering the circumstances and unjust where the orders create a situation whereby a child can be removed from the Commonwealth of Australia by a foreign national. Incorrect application of Sec 60CC of [the Act].
(As per the original)
First and foremost, it is incorrect that the orders permit the child to be removed from Australia. The orders expressly forbid it (Order 5).
Aside from expressing his dissatisfaction with the orders, the father failed to offer any argument as to how they should be perceived as manifestly unreasonable or unjust. Ostensibly, the orders cannot be so regarded because they aligned with those mutually proposed by the mother and the ICL and were broadly consistent with the expert opinion evidence given by the court child expert.
Grounds 1, 7 and 8
Grounds 1, 7 and 8 are not competent grounds of appeal, but are rather an enunciation of the father’s dissatisfaction with the orders. They are pleaded as follows:
1.Rendering of an erronous verdict putting the child in harms way and causing orders to be a source of unacceptable risk for the child's safety, health and well being. Additional letters obtained from child's GP. Orders create set of conditions creating an assault on the safety, well being, religious and cultural needs of the child including perception of aiding relocation of child to a non Hague signatory country, by deploying inadequate checks and encouraging international child abduction by foreign national.
…
7.Orders causing distress, trauma, undue hardship, harm to the child and not centred around the best interests of the child.
8.Orders designed to assault the religious rights of the child and right of the child to know their culture.
(As per the original)
As no appealable error is asserted by the grounds, they are rejected.
Disposition
The appeal is dismissed.
The mother sought her party/party costs of the appeal in the event of its dismissal, but was willing to concede the father receives welfare income and has no assets of significance. She commendably accepted his apparent penury would preclude the grant of costs (s 117(2A)(a)). The application is dismissed.
The ICL also sought her party/party costs of the appeal in the event of its dismissal, but also commendably conceded the father’s financial circumstances would preclude the grant of costs (s 117(4)(b)). The application is dismissed.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 19 July 2024
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