Remington and Coquillo

[2007] FamCA 821

FAMILY COURT OF AUSTRALIA

REMINGTON & COQUILLO [2007] FamCA 821

FAMILY LAW – PARENTING ORDERS – APPEAL FROM FAMILY COURT OF AUSTRALIA – Not established that the trial Judge erred in failing to order the production of a further expert report regarding the father’s relationship with the child. The trial Judge was not requested to do so, nor would the material therein provided have altered the exercise of the trial Judge’s discretion. House v The King (1936) 55 CLR 499 discussed.

CDJ & VAJ (1998) FLC 92-828/CDJ v VAJ (1998) 197 CLR 172

House v The King  (1936) 55 CLR 499

APPELLANT: MR REMINGTON

RESPONDENT: MS COQUILLO

FILE NUMBER: PAF 7 of 2003

APPEAL NUMBER: EA 45 of 2006

DATE DELIVERED: 27 June 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Faulks DCJ, Coleman & Thackray JJ

HEARING DATE: 27 June 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 April 2006

LOWER COURT MNC: [2006] FamCA 446

REPRESENTATION

COUNSEL FOR THE APPELLANT: MR REMINGTON ON HIS OWN BEHALF

COUNSEL FOR THE RESPONDENT: Mr Sansom

Orders

1. That the appeal of the husband be dismissed.

2. That the appellant husband pay the wife’s costs from 20 March 2007 to and including today as agreed or taxed.

3. That the parties pay their own costs up to and including 20 March 2007.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Remington v Coquillo

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA45 of 2006
File Number: PAF7 of 2003

MR REMINGTON

Appellant

And

MS COQUILLO

Respondent

REASONS FOR JUDGMENT

1. COLEMAN J:  By Amended Notice of Appeal filed 5 July 2006, Mr Remington ("the appellant") appealed against orders made by Collier J on 13 April 2006, in proceedings between the appellant and Ms Coquillo ("the respondent"). In lieu of the parenting orders made by the trial Judge on that date, the appellant sought orders as set out in a document styled "Attachment 2" to his amended Notice of Appeal, which is found at Appeal Book, page 123.

2. The background to the proceedings can briefly be stated. The proceedings commenced before the trial Judge on 4 May 2004, at which time the appellant was unrepresented. The respondent was represented and continued to be represented throughout the trial of the proceedings before his Honour. The matter was adjourned on 5 May, on the application of counsel for the respondent, in order to obtain an expert's report. The matter was stood over to 6  May before the trial Judge. On 6 May his Honour made orders enabling the appointment of an expert, with appropriate directions for that to occur.

3. On 12 August 2004 the matter came before the trial Judge, at which time, at the request of the appellant, the order for the appointment of an expert was discharged. The matter resumed before the trial Judge on 13 September 2004, at which time the appellant was represented by counsel. There were then applications, which are not material for present purposes, the outcome of which was that the trial of the proceedings resumed and further evidence was heard.

4. The matter then occupied part of the Court's time on 14 September. The matter was clearly before the trial Judge on 15 September, at which time the appellant was represented, and a Mr O, a court counsellor, who had prepared a report in the proceedings, was cross-examined. That was on 15 September 2005. In the intervening period his Honour had heard evidence on a number of days.

5. The trial Judge produced a very detailed and thorough judgment, most of which, in the light of the issues raised in this Court, does not need to be referred to. I simply record that his Honour reviewed, very extensively, the evidence which he had heard in the proceedings. He directed himself to the law which governed the proceedings, commencing at Appeal Book, page 87, par 251 of his judgment, with the heading "Section 68F", which at that time was the relevant legislative provision governing the determination of the proceedings. No part of this appeal turns upon the law which his Honour applied.

6. Under the heading "Discussion" (Appeal Book, page 95, par 280), his Honour gave detailed reasons for reaching the conclusion he did in relation to proceedings before him. It is apparent from reading his Honour's discussion that, in the course of the various paragraphs therein contained, his Honour related the findings of fact made by him, his impressions arising from those findings of fact and the inferences he drew to the relevant legislative provisions.

7. At the commencement of the hearing of the appeal the appellant applied for leave to adduce further evidence. The further evidence was a document prepared by a legal officer, Directorate of Litigation, Defence Legal, on 4 April 2006. A copy of the document is page 6, or annexure A, to an affidavit of the appellant filed 7 February 2007 in support of his application to adduce further evidence in the terms of that document. Counsel for the respondent consented to the Court receiving that document but made clear that the consent was merely to the Court receiving the document for the purpose of assessing its significance, rather than any concession of the kind which might, if appropriate, arise from the decision of the High Court in CDJ & VAJ (1998) FLC 92-828/CDJ v VAJ (1998) 197 CLR 172.

8. In order to determine whether the further evidence would render erroneous the trial Judge's conclusions or decision in this matter, it is necessary to have regard to the document. So doing does not, in my view, begin to reveal anything which would bring the further evidence within the ambit of the criteria which appear to emerge from the majority judgment in CDJ v VAJ. To give a context to it and, hopefully, in fairness to the appellant, it is perhaps appropriate to refer to some other matters under what might be called the umbrella of the appellant's military service.

9. At the outset, it is appropriate to record the concession made by the appellant that the trial Judge was not misled by the document to which reference has been made. The appellant, fairly, conceded further that the learned trial Judge had not been misled in any other way by anything said or done, tendered or not tendered, with respect to his CMF service. Given those concessions, which, for my part, appear to be well-founded, having regard to the trial Judge's reasons for judgment and the documents which appear in the file, it might be thought that no more needs to be said about the application, or the fate of the further evidence, which has, by consent, been received. For more abundant caution, however, I have perused his Honour's reasons for judgment in order to discern whether, and, if so, in what possible way, anything relating to the appellant's CMF service may have been taken into account by the trial Judge erroneously or in other ways which potentially disadvantage the appellant. I am unable to find anything which meets that description, and that is perhaps unsurprising, given the concessions which the appellant made in relation to his CMF service.

10. Without referring to it in detail, at Appeal Book, page 36, par 64 and 65, his Honour referred to some evidence apparently given by the appellant in relation to his previous military service, which it ought be noted predated by more than three decades the trial before his Honour. The relevance of this matter one might have reason to doubt. In any event, nowhere in his Honour's judgment, that I have discovered, did the trial Judge ever say that he did not accept the appellant's evidence as to the nature and extent of his previous military service, nor, in any portion of his Honour's judgment which I have discovered, is it discernible that his Honour's evaluation of the appellant, in any relevant sense, was adversely impacted by whatever conclusion, if any, his Honour ultimately reached about the appellant's previous military service.

11. Beyond assuming some significance in the course of evidence, for my part, I am unable to see that the appellant's military service, whatever its nature and extent, was material to the trial Judge's exercise of discretion. Nothing to which we have been referred by the appellant persuades me that either the document received into evidence from the legal officer, Directorate of Litigation, Defence Legal of 4 April 2006 or anything else pertaining to the appellant's military service would, if accepted, render erroneous the trial Judge's decision. To the extent that the documentation to which I have referred came into evidence it could not possibly enliven appellate intervention.

12. The appellant then sought leave to amend his grounds of appeal. It is obvious from the record that this application is almost 12 months after the amended Notice of Appeal upon which he otherwise relies was filed. In fairness, it is not suggested by the appellant that he gave any prior notice of the proposed amendment to the respondent, or those representing the respondent. With respect to him, it would be fair to say that the articulation of the proposed additional ground of appeal was very much an ad hoc exercise on the part of the appellant.

13. To the extent that the proposed ground of appeal is intelligible, which is not intended to be demeaning to the appellant, it seems to have been a complaint that there was an attempt to portray him in various adverse ways, or - to use the expression the appellant himself used - as:

    other than what I was.

14. In what way that was sought to be achieved was not made clear. It was not submitted by the appellant, nor, with respect, could it rationally have been, that any such attempt was successful. It is to be remembered that this Court is dealing with challenges to the decision reached by the learned trial Judge. It does not have - to use an expression of Hayne J in another context - a kind of roving commission to revisit anything and everything which a litigant perceives to constitute, or possibly constitute, some wrong done to him or her. The absence of any nexus between what I understand to be the thrust of the further ground of appeal sought to be agitated by the appellant and anything arising from the learned trial Judge's judgment, in my view, justifies rejection of the application for leave to thus amend. It is unnecessary, there being no basis for granting the application to further amend, to consider any questions of prejudice to the respondent. For my part, rejection of the purported amendment does not turn on such discretionary issues.

15. It is then necessary to consider what are the grounds of appeal, and they appear to be three somewhat different expressions of what is essentially the same complaint. They appear at Appeal Book, page 122, attachment 1.

    1.The Department of Defence had information they wished to give to the Court and as I understand matters, a draft copy was prepared prior to and in existence at the time of Judgement.

    2. Certain information in regard to this very matter was to be conveyed to the Court was on their own volition and not at any request by me. The first I knew about it was after Judgement.

    3. This constitutes new evidence from a third party to try and assist the Court and was prepared prior to Judgement.

    4. I understand the Department of Defence has no knowledge of the existence of this subpoena especially at the source of the alleged author of the return notice filed in the Parramatta Court.

    5. This being the document stating that the Department of Defence has no knowledge of any Military Service by me.

    6. The problem I found on initial reading of that document from Corporal [G] is that it looked like a transcript of a telephone conversation somewhat modified. It has other problems as well as does other documentation.

    7. We will really hove to wait until the Deportment of Defence makes its submission however I understand that their explanation of events in service and authenticity of documents is very different to that offered by I R.

    8. The whole matter is one now between I R and the Department of Defence. I am sitting on the side trying to make sense of it all. The only thing I know is that the Department of Defence has no need to harm me in anyway. The same cannot be said of I R and my case, had he had way and have us all believe didn’t exist—was all my imagination.

    9. What is interesting though not in evidence is that there was a claim by I R that documents were given to a process server at the beginning of year 2003 for service on me. When asked where they were all he could reply was that something must have gone wrong. I am still waiting for those documents.

    10.1 believe this goes well beyond the issue of misleading the Court and experts who could have prepared a valid report for the Courts benefit and seriously shows the extent to which the respondent will agree to and execute to try and achieve her ambitions.

    11. While the issue of conduct is a major source for concern alone and must be dealt with, the child issues for outweigh all that to an unprecedented extent as is the issue at hand.

16. Stripping the grounds of appeal of some colourful but immaterial language, the thrust of the complaint made by the appellant seems to be that the trial Judge erred in failing to order a further expert report in the circumstances which arose in the proceedings before him. As is clear, and not in contest, as the trial Judge recorded, the previous order for an expert report was discharged on the date earlier indicated, in response to the request of the appellant that such discharge occur. It is common ground that the appellant did not thereafter ask the trial Judge, either when unrepresented or when represented, to make a further order for an expert report.

17. The appellant referred the Court to a portion of the transcript of cross‑examination of Mr O, court counsellor, who had prepared a report and was cross-examined before the trial Judge. Not insignificantly, by the time Mr O was cross-examined the appellant was represented by counsel of very considerable experience. At Appeal Book, page 161, in the course of a series of exchanges, it became apparent that the respondent, in her evidence throughout the proceedings, or, at least, on a number of occasions after her separation from the appellant, and at all material times, had opposed the appellant having any contact with the child of the parties. That was in contrast with the position which apparently prevailed when Mr O interviewed the respondent for the purpose of preparing his expert opinion report, during the course of which, according to his evidence on 15 September 2005:

    She didn't say to me that she wanted contact to stop, from my recall.

18. Further questioning by counsel of no particular significance then occurred. Then, at Appeal Book, page 162, counsel for the appellant asked Mr O the following question:

    Now, can I ask you this?  Had you known that she was opposed to Mr Remington having any contact with M, would the questions you put to her have been different?

    to which Mr O replied:

    Of course.

19. At that point, and without suggesting any criticism of counsel for doing so, counsel for the appellant terminated cross‑examination of Mr O. The record suggests that this was at about 2.32 pm that day. The record suggests - and the appellant, at least tacitly, confirms, or acknowledges - that the matter continued for some time thereafter on that day. The record reveals that 15 September 2005 was in fact the last day of the trial of the proceedings. A reasonable inference to be drawn in the circumstances is that the submissions, which were undoubtedly made to the trial Judge, occurred some time after 2.32 pm on 15 September 2005. It is not suggested by the appellant that, at any time after Mr O gave what is submitted to have been a very significant answer, appearing at page 162, the trial Judge was asked to order any further expert report.

20. To what extent the trial Judge ought to have been thus moved to order a further report is unclear and, with respect, no cogent assistance in that regard is proffered by the appellant. It is instructive, however, to look at what the learned trial Judge ultimately concluded in order to determine whether, and, if so, how, a further report might in some way have been of assistance to the present appellant. In short, as a reading of the transcript of discussion earlier today would confirm, the passage is then referred to and the trial Judge made a number of positive findings in terms of the appellant's relationship with his child. Those, it seems, at least in part were based upon acceptance of Mr O's evidence in relation to that topic. Also of significance for present purposes, the trial Judge recorded that he found the respondent to be:

    an unconvincing and unsatisfactory witness.

21. His Honour further found, when dealing with attitudinal matters relevant pursuant to s 68F,  that the respondent was unable to acknowledge or concede the part to be played in the child's upbringing and future; that she could not identify the need of the child to have a relationship with his father over her alleged concerns about him; that she had clearly placed her own interests significantly before those of the child, and had:

    hit upon the simple solution of excluding Mr Remington from M's life.

22. The passage which makes clear that his Honour accepted Mr O’s positive impression of the relationship between the appellant and his child appears at Appeal Book, page 86, par 244.

23. Objectively, when one looks at the learned trial Judge's reasons for judgment, it is difficult to see in what way his Honour could have made more damaging findings with respect the respondent's attitude than one there finds, on the one hand, whilst, on the other, it is difficult to see in what manner - given his Honour's reservations about both parties, which he amply documented earlier in his reasons - expert opinion evidence of the father's relationship with the child could have been any more favourable than the trial Judge regarded the evidence before him as being.

24. In my view, on at least two bases, it can be said that the thrust of the grounds of appeal lack merit. One is perhaps the more narrow basis, that the learned trial Judge was never asked to order a further report. It is significant that the appellant was represented at the time when that might reasonably have been expected to have been sought. The second and broader basis is that, even if - which, to my mind, has not been established - his Honour should have been on inquiry as to the possible benefits of ordering a further report, the reality that his Honour's ultimate findings were favourable to the appellant in the ways briefly indicated, and adverse to the respondent in the ways briefly indicated militated against his Honour exercising such independent discretion as he had to order a further report.

25. With respect to the appellant, on his Honour's findings of fact and having regard to the way the trial appears to have been conducted, from the very limited portion of transcript that the appellant has placed before us, it could be argued, in my view, that his Honour would have been needlessly and unjustifiably prolonging the proceedings had he ordered a further report.

26. The balance of the grounds of appeal with respect to the appellant, can be briefly and simply disposed of - that is to say, the complaints about the proceedings, or any aspect of them, being compromised:

    by virtue of a liturgy of deceit, lies and hidden agendas.

27. In short, save to the extent to which I have referred, nothing put to us by the appellant establishes either the prospect of the proceedings having been potentially so compromised or, perhaps more importantly, any semblance of, in reality, such a scenario having been realised. It is not without significance that, save to the extent of the grounds appearing in the amended Notice of Appeal and the two other matters to which reference has been made, which arose earlier today, the appellant makes no complaint about any aspect of the conduct of the proceedings by the learned trial Judge. Given the length of the proceedings and the nature of the complaint which the appellant has seen fit to agitate before this Court that, in my view, is significant. In my view, no ground of appeal or other basis for challenge to the learned trial Judge's decision having been made out in accordance with the judgment of the High Court in House v The King, the appeal should be dismissed.

1. Whilst the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 is well‑known to legally-qualified persons, the manner in which, with respect to him, the appellant has conducted his appeal leaves me less than convinced that the appellant understands, with respect to him, the principles upon which this Court must act. For that reason alone, I read onto the record the passage which, almost inevitably, is quoted in this context and has been for at least 71 years. It reads this way:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

2. His Honour had a discretion to order a further report. He did not exercise that discretion to do so. Nothing to which we have been referred by the appellant persuades me that any of the bases for appellate intervention referred to in House v The King, and followed without demur ever since the case was decided in 1936 has been made out. The order I would propose is that the appeal be dismissed.

3. FAULKS DCJ:  I concur in the order proposed by his Honour Coleman J. I would only add that I take some support for that proposition from para.34 of his Honour the trial Judge's judgment in which he indicated that whilst the issue of the future of the child M will not be determined on issues of credit, they are significant that in regard to parenting issues I set out my own questions of the parties based on the evidence I heard. That would only confirm me both in the determination that this Court has made about the refusal to grant leave to amend the Notice of Appeal and also the determination reached by his Honour Coleman J.

4. THACKRAY J:  I would also agree with the views expressed by Coleman J. For the reasons that he has given, I would also dismiss the appeal.  

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  1 August 2007