Ressel & Morath
[2023] FedCFamC1A 145
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ressel & Morath [2023] FedCFamC1A 145
Appeal from: Ressel & Morath (No 3) [2023] FedCFamC1F 154 Appeal number: BRC 12043 of 2020 File number: NAA 93 of 2023 Judgment of: ALDRIDGE, HARPER & BRASCH JJ Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders where child is to spend no time with the appellant – Where the appellant challenges the primary judge’s finding that he is an unacceptable risk of harm to the child – Where appellant contends counsel incompetent – Where the appellant contends the primary judge erred in consideration of the extensive domestic violence – Where the appellant’s Summary of Argument fails to engage with grounds of appeal – Where there is no merit in any of the grounds of appeal – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where respondent seeks costs on an indemnity basis – Where appeal doomed to fail – Indemnity costs order made in favour of the respondent.
Legislation: Evidence Act 1995 (Cth) s 41
Family Law Act 1975 (Cth) ss 65DA(2), 62B, 117, 117(2), 117(2A), 117(2A)(a), 117(2A)(b), 117(2A)(c), 117(2A)(e)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.13(4), 13.23(3), 13.23(2)(a), 13.23(4), 13.39, 13.39(2), 13.45
Bar Association of Queensland 2011 Barristers’ Conduct Rules, as amended r 41
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 801
D & D (Costs) No 2 (2010) FLC 93-435; [2010] FamCAFC 64
Harris & Dewell (No 2) (2018) FLC 93-863; [2018] FamCAFC 180
House v The King (1936) 55 CLR 499; [1936] HCA 40
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFC 157
Munday v Bowman (1997) FLC 92-784
OP v TP (Conduct of Counsel) (2003) 30 Fam LR 281; [2002] FamCA 1155
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36Yunghanns v Yunghanns (2000) FLC 93-029; [2000] FamCA 681
Number of paragraphs: 86 Date of hearing: 2 August 2023 Place: Brisbane, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Damien Greer Lawyers Counsel for the Independent Children's Lawyer: Mr Kalimnios Solicitor for the Independent Children's Lawyer: Queensland Legal Practice ORDERS
BRC 12043 of 2020
NAA 93 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RESSEL
Appellant
AND: MS MORATH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, HARPER & BRASCH JJ
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 19 July 2023 is dismissed.
2.The Applications in an Appeal both sent to the Registry on 31 July 2023 are dismissed.
3.The appeal is dismissed.
4.The appellant pay the respondent’s costs in the sum of $17,046.15 within 28 days of the date of this order.
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 Ressel & Morath has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, HARPER & BRASCH JJ:
This is an appeal against parenting orders made with respect to the child, X, born in 2014 (“the child”). X is the only child of the parents’ relationship, which commenced in 2013 to separation on a final basis on 26 February 2020. The parties thereafter came to some agreements for the child to spend time with the appellant.
However, apart from a supervised video meeting for a Family Report in May 2022, the child has not spent any time with the appellant since 22 April 2020. Thereafter, between 16 May 2020 to 18 May 2021, the appellant sent the respondent and others within her orbit, numerous vile messages many of which were designed to terrify the respondent, as conceded by the appellant.
The abhorrent communications by the appellant ceased by the end of May 2021 when the appellant was arrested – for the third time – in relation to offences against the respondent. This time, bail was refused and the appellant was held on remand until late February 2022. At that time, the appellant pleaded guilty to multiple offences. The appellant was released on time served; he is on parole until November 2023 (Exhibit 5, p.158).
After his release from jail in February 2022, and notwithstanding he was on parole, the appellant resumed his appalling communications, this time directed at the respondent’s new solicitors with threats about the solicitor’s career and family. He admitted sending many of the messages at trial.
The matter came on for trial for two days commencing 6 March 2023. Reasons and orders were handed down on 15 March 2023. The primary judge found the appellant posed an unacceptable risk to the child and that long term supervision would not be in the child’s best interests. The primary judge made no time and no communication orders with respect to the child and appellant.
The appellant appeals from those orders, and in particular Orders 1, 3, 4, 5, 6 and 8. They concern orders for sole parental responsibility, the no time and no communication orders, restraints on the appellant from approaching or contacting the respondent and various associates, and, orders permitting the respondent to travel overseas with the child and secure a passport. Curiously, Order 8 is made pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth) (“the Act”) which requires parties be advised of the consequences that may follow if a person contravenes an order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached to all parenting orders.
THE APPELLANT’S NON-COMPLIANCE
On 29 May 2023, the appeal judicial registrar ordered as follows:
6.Each party must prepare the summary of argument and list of authorities in accordance with Rule 13.23.
…
8.The Appellant file and serve the summary of argument and list of authorities upon which they wish to rely by 4.00pm on Friday 23 June 2023.
The appellant did not file a Summary of Argument by 23 June 2023, or at all. Instead, the appellant filed two affidavits on 19 and 24 July 2023 which purport to be summaries, albeit a month or so out of time and in excess of the permissible page limit. It is also difficult to discern how those two affidavits comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and, if relevant, r 13.23(3). As such, r 13.45 would allow us to dismiss the appeal. We will not dismiss the appeal just for non-compliance. We will do our best to understand how the affidavits address the grounds.
That said, r 13.23(4) provides:
(4) Issues not identified in the summary of argument may not be advanced at the hearing of the appeal except with leave of the appeal court.
We will consider the two affidavits as the Summary of Argument (“the Summary”) but disregard any grounds of appeal not addressed therein.
The next problem for the appellant is that he sent two Applications in an Appeal to the Court on 31 July 2023, being one clear day before the appeal hearing. One sought to “add audio/video evidence which i wanted my legal rep to put to trial but failed to do so under my instructions” (Application in an Appeal sent 31 July 2023, p.2). The second application sought:
1.To produce Evidence filed on the 24th July 2023 to Northern appeals with the continuation.
2.To produce evidence and affidavit. exh [MR]1, [MR]2, [MR]3, [MR]4, [MR]5, [MR]6, [MR]7, [MR]8.
(Application in an Appeal sent 31 July 2023, p.2) (As per the original)
Contrary to r 13.39, no affidavit was filed in support of either application as required. Rule 13.39(2) provides:
(2) The affidavit filed with the application must state:
(a) briefly but specifically, the facts on which the application relies; and
(b) the grounds of appeal to which the application relates; and
(c) the evidence that the applicant wants the appeal court to receive, or at least the nature of the further evidence; and
(d) the reason why the evidence was not adduced at the hearing.
We will not grant leave for the appellant to rely upon the two Applications in an Appeal sent to the Court on 31 July 2023 and accordingly they will be dismissed. They are out of time and contrary to r 13.39, no affidavit accompanied the applications. Thus, neither the Court, nor the respondent and Independent Children’s Lawyer (“the ICL”) were in any positon to understand what this evidence is, let alone to what it relates. Similarly, the applications are considerably late and therefore cause prejudice to the other parties.
THE APPLICATION IN AN APPEAL FILED 19 JULY 2023
As foreshadowed, the appellant filed an Application in an Appeal on 19 July 2023 and affidavits of 19 and 24 July 2023. One order in the application sought a property order, but there is no appeal from the property orders made in November 2022. We will disregard that order.
The other order sought an extension of time to 21 July 2023 to file material, which the appellant said his lawyers failed to do. Nothing was forthcoming from the appellant by this date.
The purpose of adducing further evidence on appeal is to identify error on the part of the primary judge (CDJ v VAJ (1998) 197 CLR 172 at [109]).
Before us, the appellant submitted that he wanted to use the 19 July 2023 affidavit to show the respondent lied or misled the primary judge about various things, including whether he had stalked her on two particular occasions. Yet, the appellant was convicted, on his own plea, of multiple offences.
A Statement of Agreed Facts was handed up to the District Court judge on sentencing. They are the facts upon which the appellant and prosecutor asked the sentencing judge to proceed. The resulting convictions stand, and stand upon those facts until and unless the convictions are quashed. The primary judge was perfectly entitled to rely on the convictions and underlying agreed factual basis.
Further, there was ample evidence before the primary judge, including the appellant’s admissions at trial that he had sent many of the vile messages to the respondent, to support the findings the primary judge made about the appellant. For example, when the appellant took issue with the respondent’s partner, the appellant sent photos to the respondent, including a handgun covered in blood, and two images of a mutilated corpse with the genitals severed and inserted into the corpse’s mouth. He had earlier emailed the respondent, “[t]hat is sick. I make sure I cut your boyfriend’s dick off and feed it to you since you” (Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.208 and Transcript 6 March 2023, p.98 lines 7–8). He also threatened to release intimate images of the respondent and a tape of the respondent and appellant having sex.The appellant accepted he did all of these things. He also accepted that he communicated the following to the respondent, being a very small tip on a very large iceberg of abhorrent communications. This sample of communications are some between 7 December 2020 and 15 January 2021, and the last extract is 22 April 2021:
I’m ready for the police to shoot me dead. I rather be dead anyway. You ruined me, you ruined my son. I make sure the whole country knows what you did, your mother did, your friend, [Ms M] did and your lawyers did.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.102)[1]
[1] Concession at transcript 6 March 2023, p.64 lines 1–5.
He better not father figure my son.
I don’t guve a fuck who ot what he is to you, if he goes near mu son, I will rip him into pieces.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.123)[2] (As per the original)
Your so evil and cold hearted. I seriously hope the person your fucking, comes home drunk or on drugs beats the fuck out of you.
…
You will realise what is true DV.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.147)[3] (As per the original)
If you keep on doing this, fuck the DV order, I don’t recognise it, it’s bullshit, I will make your life hell like the way you did to me. Life is an illusion it’s here one day and gone the next.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.157)[4]
I wish you can hang yourself, i seriously do…
(Exhibit 5, p.7)[5]
[2] Concession at transcript 6 March 2023, p.67 line 42 to p.68 line 21.
[3] Concession at transcript 6 March 2023, p.76 lines 19–24 and 36–38.
[4] Concession at transcript 6 March 2023, p.78 lines 19–23.
[5] Concession at transcript 6 March 2023, p.105 line 42–44.
The appellant accepted he threatened to go to the home of the respondent’s then solicitor and emailed the solicitor directly in the following terms on 20 April 2021:
Someone is after you and [the respondent] cause of you withholding things that isn’t yours or [the respondent’s], and it ain’t me.
…
Hold [solicitor’s child] tight. You don't want to miss out on the major milestones and achievements like I have would you?
Someone came for me, then they realised who I know, now they won’t come to me, but they will come to you, I blamed you for the mess, now you deal with it…
…
…You should honestly go hang yourself for what you did.…I have nothing to loose [solicitor]. You have so much to loose.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.276–277)[6] (As per the original)
[6] Concession at transcript 6 March 2023, p.102 line 41 to p.103 line 32 and p.104 lines 1–12.
The appellant did not just focus on the respondent or her solicitor. He conceded he sent the following to the respondent’s best friend on 18 and 20 January 2021:
Your day is coming. Before you know it, you will regret what you did…If I don’t get my son back as co-parenting because of your bullshit lies when you said I fucked your boss I will wipe your face off your shoulders. You don’t know who you messed with.…You have caused so much bullshit and money, your in debt with me. Your life will change in an instant moment when I see you around very soon.
…
…Your root of the cause. You broke the family, I will break you so slow and painfully you will want to kill yourself. I know every about you, where you live, work and play. Nothing will stop me until you tell [the respondent] it was bullshit about me fucking your boss...
(Exhibit 5, p.9–10)[7]
[7] Concession at transcript 6 March 2023, p.80 line 4 to p.81 line 36.
It thus becomes irrelevant whether the appellant’s counsel raised the fact there may have been, for example, “[n]o vision of me driving the car” or that he was buying furniture in a particular area when the respondent complained the appellant was stalking her on ... September 2020 in that very same area (Affidavit of the appellant filed 19 July 2023, p.3 and Exhibit 1 to the appellant’s affidavit filed 19 July 2023, p.6–12). Further, the Agreed Statement of Facts before the sentencing judge included that the appellant contravened the domestic violence order in on that date in September 2020 (Exhibit 5, p.4). As said, the primary judge was entitled to rely upon the Agreed Statement of Facts, as that is precisely what the prosecutor and appellant put to the sentencing judge.
Similarly, Exhibit 2 to the appellant’s 19 July 2023 affidavit indicates the appellant transferred the registration of a car to a third party prior to the respondent saying she saw the vehicle (note, vehicle) at a shopping centre after that date. Those documents were available at the hearing and even if tendered do not show the primary judge to be in error on her findings of unacceptable risk. There was a mountain of other evidence, much of which fell from the appellant’s lips at trial, whereby the date of the vehicle’s registration transfer pales into insignificance and does not call into question the primary judge’s findings of unacceptable risk. In any event, the primary judge made no findings about this shopping centre allegation adverse to the husband; the primary judge did not even mention it.
Exhibit 3 is various emails between the parties, many of which pre-date separation. It seems the appellant wishes to challenge the idea that he was always disrespectful to the respondent. However, the primary judge did not find that. Indeed, at trial, the respondent accepted that prior to and upon separation things were relatively amicable, but the parental relationship deteriorated when she heard the appellant say on 22 April 2020, “I’ll go to her place and I will shoot her between the head between the eyes” (Exhibit 5, p.3). The appellant conceded he said this.[8]
[8] Concession at transcript 6 March 2023, p.14 lines 7–11.
Exhibit 4 shows the parties thought about a private parenting agreement on 9 March 2020, but this is before the appellant started his campaign of terror. It does not demonstrate any error in the findings of the primary judge about unacceptable risk – findings that were well and truly open on the evidence just from the appellant’s answers in cross-examination.
Exhibit 5 is texts, seemingly on 26 February but year unknown, including one from the appellant that “the [motor vehicle] can do 335km an hour” (Exhibit 5 to the appellant’s affidavit filed 19 July 2023, p.37). The appellant says this contradicts what the respondent said in her trial affidavit filed 15 February 2023 at paragraphs 53 and 54, where the respondent deposed the appellant told her (when speaking to her as opposed to the text to which he refers), “I’m going to drive into a wall”. The appellant’s text at Exhibit 5 does not contradict what the respondent deposed the appellant said. On the basis of the motor vehicle text at Exhibit 5, it also seems the appellant calls into question the primary judge’s references to the appellant’s threats to suicide (at [43] and [45]). The text about the motor vehicle does not undermine the primary judge’s finding about suicide, which were amply supported by the unchallenged evidence of the respondent at paragraphs 53 and 54, as well as the appellant agreeing he told the respondent about, essentially, “suicide by cop”, inter alia:
This time, nothing will stop me except a bullet from a police officer. That’s a promise now.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.75)[9]
I won’t be wasting anymore money now. Anymore issues with the police, they need to shoot me dead now…
(Exhibit 5, p.42)[10]
The only thing that will stop me is if you or the police kill me. That’s the only way.
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.86)[11]
Like I said, only interaction with the police now, is if they shoot dead. Then that will turn your life upside down for a few reasons…
(Annexure MM-1 to the respondent’s affidavit filed 15 February 2023, p.94)[12]
[9] Concession at transcript 6 March 2023, p.54 lines 34–37.
[10] Concession at transcript 6 March 2023, p.56 line 45 to p.57 line 1.
[11] Concession at transcript 6 March 2023, p.59 lines 9–12.
[12] Concession at transcript 6 March 2023, p.61 lines 1–4.
Exhibit 6 apparently challenges the respondent and maternal grandmother saying the appellant was uninvited to an event in early March 2020. The primary judge made no findings about this. There is nothing to challenge. Even if the primary judge had, it bears little moment when looking at the totality of what the appellant communicated to the respondent and others.
Exhibit 7 gives the professional contact details for Family Report writer who was ultimately not used in this matter. Nothing turns on this.
Exhibit 8 is pictures, apparently of the child with some bruises, which the appellant says were caused by the maternal grandmother. The provenance of these photos is unexplained. In circumstances where the appellant sought no injunctive relief against the maternal grandmother, it is hard to identify error on the part of the primary judge for not making protective orders that the appellant did not seek. The seeking of protective orders could be the only logical consequence arising out of the allegations raised by the appellant, but he sought none.
Whether the respondent sold the appellant’s goods online without his consent, is literally missing the woods for the trees (Exhibit 9). It is irrelevant to the parenting proceedings.
Exhibit 10 is a “to whom it may concern letter” from a counsellor dated 28 February 2023. It was entirely reliant upon the appellant’s recount to the counsellor, who makes the point she was “not privy” to any documents. Interestingly, it says the appellant needs “a safe place to vent” particularly when “his needs are not being met”.
The appellant complains this was not put before the primary judge. The appellant’s trial counsel initially sought to tender the document, but did not press the tender when objection was taken. There is little wonder the appellant’s trial counsel did not press the tender. The two page letter is rank hearsay, opinion evidence without a basis, and offends the principles in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
Even if it had been admitted into evidence, it would have attracted such little weight, if any, and certainly would have not lead to a different outcome to that which the primary judge determined. If anything, it was unhelpful to the appellant’s position that he was a changed man.
In short, we do not see how the appellant’s proposed further evidence in the 19 July 2023 affidavit and the attached exhibits could demonstrate error in the primary judge’s determination of the child’s best interests. The appellant failed to persuade us it did.
The 24 July 2023 affidavit is really the appellant’s critique or running commentary on the transcript and not further evidence.
The Application in an Appeal filed 19 July 2023 will be dismissed.
THE APPEAL
The Amended Notice of Appeal filed on 18 May 2023 contains six grounds. We have already noted the appellant’s non-compliance with filing a Summary of Argument, but will deem the appellant’s 19 and 24 July 2023 affidavits as if they were the required Summary.
We proceed on the basis that the Summary sets out the challenges to the orders, and, that the grounds that go beyond what is identified in that Summary are abandoned.
In so far as the grounds rest on the exercise of discretion, then, it is well settled that (see House v The King (1936) 55 CLR 499):
… 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.
Ground 1: Counsel incompetence. Seems like I had no counsel to act for me. All evidence and affidavits plus witnesses was not submitted or used at trial. Miscarriage of justice. Unfair trial.
In his Summary, the appellant said:
The evidence that was put at trial wasn’t ever crossed examined from my counsel.
I have sent my counsel and solicitor documents, emails and photos and evidence to support my defence but was told not to file it or put into my affidavit.
My legal aid funded counsel didn’t want report from my first counsellor that I saw since March 2020 to around June 2020.
None of the evidence was ever objected too but accepted to have at trial which was unfair due to my legal team that was via legal aid to do cross examination didn’t do what I asked them or to submit my original affidavit with emails, photos and documents, audio and video to prove at trial there were some errors in the respondents affidavits and materials.
…
Theses are the evidence I would like to put forward to show my side of the case I wanted at trial which my legal aid funded solicitor and counsel failed to submit to court for trial and to cross examine [the respondent] and her mother. [The appellant then sets out the exhibits which we have previously canvassed on the further evidence application].
…
In [the primary judge’s] findings she mentioned a few things. Also in trial. Regarding evidence in my affidavits. Since it wasn’t in my affidavits I had no evidence. This shows that my legal aid funded counsel failed.
(Affidavit of the appellant filed 19 July 2023, p.2–4) (As per the original)
It is hard to see how the counselling report of 2020 could assist the appellant (and thus the Court) in any way, because the appellant’s abhorrent communications include and, mainly, post-date the counselling report. The appellant’s communications were from May 2020 to his incarceration in May 2021, and then after his release from jail in February 2022 to November 2022.
With respect to the respondent’s apparent failings, the appellant submitted on the appeal that his lawyers told him not to be negative about the respondent. In circumstances where the appellant proposed the child live with the respondent, and given the abominable communications he had sent, that is an entirely appropriate and sound strategy.
We have already considered the 10 exhibits the appellant wished to put before us on his Application in an Appeal, to adduce further evidence. None of those matters indicate counsel’s incompetence. Rather they indicate forensic choices made with a keen eye to relevance, the orders sought by the appellant, and well within the requirement that counsel is not their client’s mouthpiece (Bar Association of Queensland 2011 Barristers’ Conduct Rules, as amended r 41). Counsel has a wide discretion as to the manner in which proceedings are conducted. The width of that discretion is reinforced by the role of the barrister as an officer of the court, by the barrister’s paramount duty to the court, and by the public interest in the efficiency and finality of the judicial processes: Smits v Roach (2006) 227 CLR 423 at [46].
In the second part of his Summary, the appellant said:
…I also wanted to produce my own evidence of recordings as changeovers but my legal aid counsel refuse to admit to court.
…
My legal counsel failed to tender evidence to have the trail fair as it would likely have a different outcome.
(Affidavit of the appellant filed 24 July 2023, p.1) (As per the original)
The recordings of changeovers must have been before the appellant started his vile communications. Save for the Family Report interview, the child has not seen the appellant since April 2020. Not putting these recordings into evidence is not demonstrative of counsel incompetence, but a sound awareness of relevance and how little they mattered given all the appellant subsequently said to the respondent and others.
There is nothing the appellant has put before us that could give even a scintilla of a prospect of a different outcome, nor a whiff of an incompetent counsel.
In OP v TP (Conduct of Counsel) (2003) 30 Fam LR 281, the Full Court (Nicholson CJ, Buckley and Kay JJ) observed:
122. So far as the children’s jurisdiction is concerned, the Full Court has pointed out in the past that this is not strictly an adversarial jurisdiction: see Separate Representative v JHE and GAW … (1993) FLC 92-376; Hutchings and Clarke … (2001) FLC 93-086. It is a jurisdiction in which the children’s best interests are paramount. The children, though not parties, are the subjects of the litigation. In such circumstances we think that the principles to be applied to children’s cases are different to property cases, and perhaps should be more liberal than in criminal cases in relation to this issue.
123. We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to affect the conduct of a trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124. On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
A strategy of showing the respondent’s lies and otherwise criticising the respondent’s character is not an approach which would have assisted the appellant at trial, given the orders he sought and hurdles he made for himself by his conduct. Not presenting a negative case about the respondent was a solid and sound strategy. None of the documents the appellant wanted to be tendered indicates any incompetence on the part of counsel.
The appellant has failed to demonstrate that decisions by his counsel were wrong or incompetent, or that their effect was likely to have brought about a different result if that case had been run.
Frankly, the appellant gave counsel little to work with.
This ground fails.
Ground 2: [The primary judge] is a stand alone discretionary Judge in the matter. She was shown to be biased throughout the whole proceedings.
Ground 3: [The primary judge] failed to give procedural fairness to one of more of the parties.
Ground 4: There was a denial of natural justice, [the primary judge] gave inadequate reasons of their decision. [The primary judge] was biased.
In his 19 July 2023 affidavit, the appellant says that transcript page 175 line 30 “shows favour for [the respondent]” (Affidavit of the appellant filed 19 July 2023, p.5). There, the appellant’s counsel asked the respondent about a specific date and the primary judge said, “[w]ell, it’s not a memory test”.
However, the primary judge expressed exactly the same sentiment to the respondent’s counsel when cross-examining the appellant, with the primary judge saying, “that’s an unfair question. Plucking a date out of the air, ‘25 May ’20, you had a call with your son.’ How is he supposed to remember that?” (Transcript 6 March 2023, p.29 lines 32–34). Judges are required to ensure questions are fair (s 41 Evidence Act 1995 (Cth)). That is all that happened in both instances, to which we have just referred.
Other than that set out above, no submissions of any particularity were made about these grounds, and nothing else said in the Summary that gives any foundation to these complaints.
We take the grounds as abandoned.
Ground 5: There was an error of law. [The primary judge] didn’t take into account what is the best interest of the child. There was multiple ways to address DV cases so the child can have a meaningful relationship with the father.
The appellant’s Summary did not engage with this ground in any meaningful way, if at all. The error of law has not been articulated. Rather it became clear in submissions that the appellant considered he was being punished by the primary orders, and was most eager to be in the child’s life.
There is no doubt the appellant wants to be in his child’s life, but that is not the test. Equally, there is no suggestion that the trial was about punishment of the appellant; the reasons are a careful and thorough examination of parenting arrangements that are in the child’s best interests. Indeed, in submission before us, the appellant confused his best interests and his wants with the primary judge’s task, which was to determine the child’s best interests.
With little if anything said of relevance in the Summary about the apparent error of law, we take this ground as abandoned.
Ground 6: Unacceptable risk. [the primary judge] didn't take into account changes in behaviour. The act states that the welfare of the child is paramount. No harm was mentioned at trial with the child.
In his two affidavits constituting the Summary, the appellant contended that the primary judge failed to see he was a changed man. The primary judge found at [5]–[6]:
5.Nothing in the [appellant’s] evidence persuades me that he is a changed man who can safely have a relationship with his child. The [appellant’s] abusive conduct was relentless and extreme. It was, as he admits, designed to terrify the [respondent], and it did. The [appellant’s] repeated attempt to excuse his conduct during the trial, with the constant refrain that he was “depressed” or “having an emotional breakdown” or “distraught at the loss of [his] son” did him little credit. There is no excuse for the [appellant’s] conduct. There was no expert evidence to support the [appellant’s] assertions that he suffered from depression or an “emotional breakdown” at the relevant time. When the [appellant] was sentenced on … February 2022 there was no suggestion that he suffered from any mental illness at the relevant time.
6.During the trial, the [appellant] did not demonstrate any capacity to accept responsibility for his behaviour or the consequences of it. The [appellant’s] loss of his relationship with his son has come about, not because of the [respondent] or her lawyers or anyone else. The [appellant] alone is responsible and until the [appellant] can accept that and demonstrate true remorse and empathy, he has no prospect of ever having a relationship with his son. It is a tragedy of his own making.
Those findings were amply open on the evidence.
The primary judge also found at [56] and [99]:
56....The [respondent] was understandably alarmed by what she heard. In his affidavit in reply, the [appellant] seeks to minimise the seriousness of his threat by saying he was “extremely frustrated” and the [respondent] was “not meant to hear”. The [appellant] adds that he “regretted saying it afterwards”. Nothing in the [appellant’s] evidence at trial persuades me that he truly regrets making these threats. During cross-examination the father agreed that the threats were made at a time when there was considerable media coverage concerning a fatal domestic violence situation.
…
99.Nothing in the evidence persuades me that the [appellant] truly regrets his appalling conduct and the impact it has had on others, including the child, or that the [appellant] has gained any insight into why he needs to change his behaviour.
Again, that finding was amply open on the evidence. The primary judge concluded her reasons as follows:
122.One can only hope that upon reading these Reasons, the [appellant] will immediately engage in intensive, long term therapy with a skilled psychologist to address his personality vulnerabilities which seemingly have left him unable to contain his anger and abuse and have caused significant harm not only to the [respondent] and the child but also to himself. If he does so engage, it would be helpful for his therapist to have a copy of these Reasons and the family report.
It would seem that suggestion fell on deaf ears – the appellant continued the same approach before us in submissions and in his Summary; that is, he had been in a bad place and was a changed man. In other words, he continued to minimise his conduct.
The primary judge was also well alert to the appellant’s completion of an “Anger Management Action Plan” on 23 February 2023, but observed at [85]:
85.…there is a complete absence of evidence from any expert the [appellant] may have attended upon in relation to his offending behaviours and general attitudes about the [respondent] and others involved in these proceedings. The [appellant’s] limited evidence about counselling he has undertaken was inconsistent and unsatisfactory.
That was a conclusion abundantly open on the evidence.
Contrary to what was said at the end of this ground, the primary judge was well alert to the impact of harm to the respondent if time or communications began, and thus the flow on impact on the respondent’s parenting of the child. In short, harm to a parent is harm to a child; see at [104]:
104.In the absence of any evidence that the [appellant] has changed I find that any reintroduction of the [appellant’s] time with the child be it in person or on the telephone would cause ongoing emotional and psychological harm to the [respondent] which in turn would detrimentally affect her parenting of the child.
The totality of the evidence at trial irresistibly led to the findings made by the primary judge. Indeed, it is difficult to see how the primary judge could have arrived at any other findings about unacceptable risk and mitigation of that risk. The appellant has failed to persuade us to the contrary. This ground fails.
CONCLUSION AND COSTS
The appeal will be dismissed.
In those circumstances, the respondent sought her costs and filed a schedule of costs on scale ($11,002.49) and on an indemnity basis ($17,046.15). The respondent’s primary position was she receive her costs on an indemnity basis.
The appellant opposed a costs order being made against him if the appeal was dismissed. The ICL did not seek costs irrespective whether the appeal was upheld or dismissed.
Section 117 of the Act is well understood. It provides that the making of any costs order in family law proceedings is discretionary in nature. The starting premise is that each party shall bear their own costs, but that general rule is subject to the provisions of s 117(2), which provides that a court may make such order for costs as it considers just if “the court is of opinion that there are circumstances that justify it in doing so”.
The factors that are to be considered when contemplating the making of a costs order are those set out in s 117(2A) of the Act; albeit the court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24]).
When asked of his financial position (s 117(2A)(a)), the appellant said he had “lost in the millions” and was preparing to “build everything up again”. He made submissions that the respondent had his assets, sold them, and used the funds. The appellant said he could not sell any of his assets to pay his lawyers. The appellant added he had:
…sold [motor vehicle 4] and I bought [another motor vehicle], then bought the [motor vehicle 2] for [the respondent] paying her the repayments for it um so all of my money was going to that, [the respondent] still has [motor vehicle 2], um she still has the apartment that I paid for…
We have no evidence of any of that save to infer the appellant has had the capacity to buy and sell luxury vehicles. The appellant also told us he works between City N and Brisbane, is developing an app and has “workers”.
Even if the appellant is impecunious or in poor financial circumstances, that is no bar to an award of costs being made (D & D (Costs) No 2 (2010) FLC 93-435).
Neither party is in receipt of legal aid. The appellant acts for himself and the respondent is privately funded (s 117(2A)(b)).
As for s 117(2A)(c), the respondent submitted that each time the appellant filed something out of time, (the late affidavits by way of a Summary, the Applications on 31 July 2023) that put her to the expense of recalibrating her case.
It is plain that the appellant has been wholly unsuccessful (s 117(2A)(e)). It is an appeal that was doomed from the start.
In the circumstances, especially that the appellant has been wholly unsuccessful on a wrongheaded appeal, and, put the respondent to the expense of considering his non-compliant material, a costs order in favour of the respondent is justified. The question then is on what basis – scale or indemnity.
An order for indemnity costsis a significant departure from the normal standard and requires something exceptional (Harris & Dewell (No 2) (2018) FLC 93-863), where the Full Court said at [23]–[25]:
23.In Kohan and Kohan, the Full Court held, in applying the principles expounded by Sheppard J in Colgate-Palmolive, that an order for indemnity costs represents a “very great departure from the normal standard”. In the later decision of the Full Court in Prantage & Prantage, Thackray and Ryan JJ referred to Kohan and other authorities in the Full Courts of both this Court and the Federal Court of Australia as well as the state appeal courts. Their Honours concluded (at [86]) that the “usual rule” continued to apply in respect of awards of costs in this Court notwithstanding the Full Court accepting that the difference between party/party costs and a party’s actual costs has continued to grow significantly.
24.That proposition also derives support from what Callinan J said in Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation. His Honour said that an order for indemnity costs should “be exceedingly rare, as they have a tendency to encourage extravagance and put the quantum of legal fees beyond the effective scrutiny of the courts and their taxing officers”.
25.The rarity of an order for indemnity costs can also be seen illustrated by the comments of Lindgren J in NMFM Property Pty Ltd v Citibank Ltd (No 2), referred to by their Honours in Prantage (at [102] – [103]). Lindgren J said that there is no rule that indemnity costs will be ordered “where the losing party was guilty of ethical or moral delinquency in the antecedent facts which have given rise to the litigation.”
(Footnotes omitted)
In the well-settled authority of Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225, Shepherd J provided some examples of circumstances that might justify the awarding of indemnity costs, and usefully, Holden CJ in Munday v Bowman (1997) FLC 92-784, at 84,660, drew from his Honour’s decision those examples:
(a)Where it appears that an action has been commenced or continued in circumstances where a party properly advised should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts…
(b)Making allegations of fraud, knowing them to be false, and the making of irrelevant allegations of fraud…
(c)Evidence of particular misconduct causing loss of time to the court and to other parties…
(d)The making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions…
(e) An imprudent refusal of an offer to compromise.
(Citations omitted)
That said, the categories of circumstances which enliven the discretion to award indemnity costs are not closed (Yunghanns v Yunghanns (2000) FLC 93-029 at [31]).
We consider that this is one of those exceptional cases where costs on an indemnity basis are appropriate. First, the appeal had no prospects of success. Second, the appellant sought to agitate that he had not sent more than 1,000 communications as the primary judge found, but rather only sent more than 200, many of which were truly awful. Given the abominable content of the many he was taken to at trial and conceded sending, debating quantum was therefore an undue prolongation of the case. Third, each time the appellant filed a document out of time, he put the respondent to the expense of considering the material.
Pursuant to r 12.13(4) of the Rules, a party applying for costs on anindemnity basis must inform the Court if that party is bound by a costs agreement in relation to those costs and the terms of that agreement. The respondent has done so (Respondent’s Schedule of Costs filed 24 July 2023, p.4–26).
We consider the quantum of the respondent’s indemnity costs to be reasonable, proper, fair and proportionate. The respondent’s solicitor has carefully provided a line-by-line list of work done, on what date, a description of that work, item numbers and costs, all of which culminate to show how the respondent’s solicitor arrived at the total sum sought.
We will order the appellant pay the respondent’s costs in the sum of $17,046.15 within 28 days of the date of this order. If the appellant needs to sell any property to meet the costs, or cash flow the costs through his work, then he has time to make that happen.
I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Harper & Brasch. Associate:
Dated: 25 August 2023
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