Sanders & Sanders
[2022] FedCFamC1A 185
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Sanders & Sanders [2022] FedCFamC1A 185
Appeal from: Sanders & Sanders [2022] FedCFamC1F 213 Appeal number: NAA 96 of 2022 File number: SYC 7660 of 2020 Judgment of: AUSTIN, BENNETT & GILL JJ Date of judgment: 22 November 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Appeal from final parenting orders – Where the appellant father asserted that the respondent mother, witnesses and the Independent Children’s Lawyer (“the ICL”) had lied either in their evidence or by their submissions – Where the appellant’s approach to the appeal was flawed – Where the appellant’s criticism is not a matter that sounded in error by the primary judge – Application in an Appeal – Further evidence – Where the appellant father sought to adduce further evidence in the form of recordings of interactions between the children, witnesses and the ICL –– Where the evidence did not reveal error by the primary judge – Application dismissed –– Appeal dismissed – Costs – Orders made for further evidence and written submissions. Legislation: Evidence Act 1995 (Cth) s 138
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Family Law Act 1975 (Cth) s 93A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: CDJ v VAJ (1998) 197 CLR 182; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Number of paragraphs: 79 Date of hearing: 29 August 2022 Place: Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Givney Solicitor for the Respondent: Minors Family Law Counsel for the Independent Children’s Lawyer: Mr O’Brien Solicitor for the Independent Children’s Lawyer: Russell Kennedy Lawyers ORDERS
NAA 96 of 2022
SYC 7660 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SANDERS
Appellant
AND: MS SANDERS
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
AUSTIN, BENNETT & GILL JJ
DATE OF ORDER:
22 November 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 12 August 2022 is refused and dismissed.
2.The appeal is dismissed.
3.In the event that the respondent seeks to rely upon further evidence in support of an application for costs, then the respondent is to file and serve such within seven (7) days of this judgment.
4.In the event that the appellant seeks to lead evidence to resist the respondent’s application for costs, then the appellant is to file and serve such within 14 days of this judgment.
5.The respondent is to file and serve written submissions directed to costs within 21 days of this judgment.
6.The appellant is to file and serve any written submissions he may make directed to costs within 28 days of this judgment.
7.The issue of costs will then be dealt with on the papers.
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 a pseudonym Sanders & Sanders has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BENNETT & GILL JJ:
Introduction
This appeal is now confined to a challenge to parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 7 April 2022, following a trial that completed on 7 February 2022.
In broad terms, that judgment provided for a change in the parenting arrangements for the two children of the relationship, the elder child (now aged almost 13) and the younger child (now aged almost 12). That change meant that the children would move from living primarily with the appellant father to live primarily with the respondent mother and, for a period of three months following judgment, would spend no time with the appellant at all. Thereafter, following a period of supervised time with the appellant, the children are to live with the respondent and spend alternate weekends during the school term with the appellant from Thursday to Monday, along with school holiday time. Sole parental responsibility was allocated to the respondent.
The appellant filed a Notice of Appeal on 4 May 2022, amending it on 12 July 2022. At that stage, the appeal contained 26 grounds that were directed not only to the parenting orders, but also to orders relating to the division of the parties’ property and the costs of the proceedings.
On 12 August 2022, the appellant filed an Application to Adduce Further Evidence, accompanied by a Summary of Argument that set out six challenges to the judgment that were confined to the parenting orders. At the commencement of the hearing of the appeal, the appellant confirmed that it was the Summary of Argument that defined his challenge to the judgment at first instance. Accordingly, there remained no challenge to either the property division orders or to the costs orders made by the primary judge, and those aspects of the appeal fell away.
For the reasons that follow, the appeal is dismissed.
The Appeal and the Application to Adduce Further Evidence
Despite the reduction in the number of grounds effected by the Summary of Argument, they remained somewhat opaque as to what error in the judgment was being asserted.
The identification of error is fundamental to an appeal. The High Court, in Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”), described that where, as here, an appeal is by rehearing, the appeal court is obliged to conduct a “real review” of the trial and of the primary judge’s reasons, and if after “making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged to, discharge their appellate duties in accordance with the statute” (Fox v Percy at [27]). This process necessitates that the appellant demonstrate error on the part of the primary judge, as identified in House v The King (1936) 55 CLR 499, on the finding of facts, in taking into account an irrelevant consideration, failing to take into account a relevant consideration, making an error of law or in reaching an ultimate conclusion that is manifestly wrong.
The grounds, however, were an attack upon the respondent, family therapist and Independent Children’s Lawyer (“the ICL”), rather than the identification of error in the judgment. The overall thrust of the appellant’s case was that the respondent had committed perjury, the family therapist had committed perjury and failed to bring particular matters to the attention of the court, and that the ICL had lied.
The appellant explained that he had not sought to critique the judgment of the primary judge, but had rather directed his attention to the respondent, ICL and family therapist, asserting that they had misled the primary judge. In accordance with this explanation, the appellant sought to adduce further evidence on the appeal, a significant part of which purported to be recordings of the children’s interactions with the ICL, family therapist and the respondent.
Consistently with the other aspects of an appeal by rehearing, the determination as to whether to admit the proposed further evidence hinges upon the capacity of the evidence to demonstrate errors that require the intervention of the appeal court.
The power to admit further evidence on appeal is contained at s 35 of the Federal Circuit and Family Court of Australia Act2021 (Cth) which is in terms analogous to those previously set out at s 93A of the Family Law Act 1975 (Cth). It is a discretionary power, described by the majority in CDJ v VAJ (1998) 197 CLR 182 (“CDJ v VAJ”) at [104], as “to ensure that the proceedings do not miscarry.” They further described the power as being remedial in nature, such that its principal purpose:
109.… is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. …
The majority further considered that:
111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. …
Whilst a new trial was not what was pursued by the appellant, the observations of the Full Court point to the necessity of giving consideration to the substantive impact of the proposed further evidence, and, in particular, its capacity to show that the original decision was in error.
Further, given the discretionary character of the decision as to whether to admit further evidence, the majority in CDJ v VAJ noted that while the failure to have adduced the evidence at trial is a variable factor in determining whether to permit it to be led as further evidence, where “the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion” (CDJ v VAJ at [116]). This is consistent with the discretion being “to serve the demands of justice” (CDJ v VAJ at [200]).
It is convenient to deal with the Application to Adduce Further Evidence as it relates to the six areas of challenge identified by the appellant in his Summary of Argument, as those are the areas which the appellant contends induce appealable error in the judgment.
However, prior to dealing with the grounds it is important to observe significant deficiencies in the proposed further evidence.
The first deficiency is that there was a lack of distinct correlation between the volume of material proposed to be led, comprising some 490 pages, and the six grounds. Rule 13.39(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)(“the Rules”) obliges a party seeking to adduce further evidence to identify the grounds to which the application relates. The appellant made no such identification.
The second deficiency is that much, although not all, of the further evidence purported to be recordings of the children interacting with the respondent, the ICL or family therapist that predated the trial before the primary judge. Despite the volume of the proposed further evidence, there was only the sparsest reference to the provenance of the purported recordings. At best there was the bare assertion that the recordings were taken by the children to assist them in their recollection of interactions, and then brought to the appellant’s attention and provided to him after the trial. No description was given of what the children actually said to the appellant. No description of how the recordings were taken, or of the knowledge of those recorded that they were being recorded was given. No description of how the recordings were provided to the appellant was given. No description was given as to the extent of the recordings, although during the appeal the appellant conceded that he did not hold recordings of all of the interactions between the children and the family therapist. The appellant chose not to disclose the extent of the recordings, or whether they were edited prior to being provided.
At best, the appellant was coy as to the circumstances of the recordings in a manner that left uncertainty as to their provenance, their probative value, and their admissibility.
The third deficiency is that portions of the evidence now sought to be adduced were available to the appellant for the trial, but were not tendered.
The appeal grounds
It may be observed that there was some lack of clarity as to which arguments and matters were put by the appellant in support of a particular ground, and at times he sought to raise matters that did not appear to be connected with any of the grounds. It is convenient to deal with Grounds 1, 2, 3 and 6 first as they are all primarily directed at the respondent, while Ground 4 is directed at the ICL and Ground 5 at the family therapist. Following his Summary of Argument, as best as could be identified, the appellant presented his argument in the manner set out below.
Ground 1
[The respondent] lied in her affidavits
15.When talking of her frequent threats to kill herself, in [the respondent’s] initiating affidavit filed 28 Oct 2020 [the respondent] wrote in para 45 “…None of this occurred in the presence of the children as they were at school…”
16.And in [the respondent’s] affidavit filed 27 Dec 2020 para 14 she said “…again vehemently deny that I have ever stated anything in front of the children of that kind”
17.[The appellant] seeks to adduce fresh evidence in the form of audio recordings, taken by the children, in which [the respondent] discussed her threats to kill herself with the children themselves, and therefore proves [the respondent] was aware the children had heard her.
(As per the original)
This ground was directed to the issue of the children being present and exposed to threats of self-harm made by the respondent, and, in particular, to the assertion that the respondent lied in denying that the children were so exposed. In support of the contention that the respondent lied about this issue, the appellant sought to adduce evidence of purported recorded conversations between the children and either the family therapist or the ICL disclosing that they had been so exposed.
The appellant’s approach to this ground illustrated his flawed approach to the appeal more generally. The focus of the ground was on demonstrating that the respondent had been untruthful, in this instance, about exposing the children to her threats of self-harm. What appears to have been overlooked by the appellant is that the primary judge found that the children were so exposed, despite any deficit in the respondent’s evidence. That is, even if the appellant was correct in his attack upon the respondent’s evidence, it was not a matter that sounded in error by the primary judge.
It may be seen that the primary judge identified that the appellant’s case was that the respondent’s mental health had resulted in:
54.… her behaving erratically, engaging in self-harm, experiencing suicidal ideation and making threats of suicide, yelling in an irrational manner, disengaging, committing acts of violence towards him, using alcohol to excess, unsafe driving and, towards the end of the relationship, making statements which he interpreted as indicative of an intention to harm herself and the children.
As part of her analysis of this issue, the primary judge dealt with the underlying issue of the respondent’s mental health. The primary judge identified that the “[the respondent] has a twenty year history of anxiety and depression with episodes of self-harm and suicidal ideation” (at [52]).
One particular instance examined by the primary judge was an incident emphasised by the appellant during the appeal, being an incident at a hardware store where he asserted that the children were exposed to the respondent’s threats of self-harm.
The appellant alleged at trial that the respondent had said in the presence of the children “I should kill myself so you can all be happy” (at [82]). Consistently with the appellant’s case, the primary judge found both that the respondent had threatened self-harm in the presence of the children on this occasion, and that she could not “discount that she may have used that language previously” (at [82]).
In relation to a later incident of 24 July 2020, occurring at about the time of separation, the primary judge noted that the respondent accepted that she had said “I just want to die I feel so trapped” (at [92]). The primary judge considered that the “events at separation would have been frightening for the whole family” (at [93]).
The primary judge noted:
98.… [The respondent] does not shy away from the fact that the children were witness to arguments and, while she does not have a good memory of the detail of events on 24 July 2020, she does not dispute that the children may well have heard her speak about a desire to kill herself (or perhaps an expression that she wished she were dead). …
Given the primary judge’s determination that the children were exposed to self-harm statements made by the respondent, it remains unclear what error the ground and the appellant’s proposed further evidence was directed to. While the appellant complained that the respondent had lied about exposing the children to her self-harm statements, the emphasis by the appellant on proving that the respondent had lied about such via the proposed further evidence ignores the fact that the primary judge found that the children had been so exposed.
The primary judge’s findings on this issue corresponded with the appellant’s contention. Neither the ground nor the proposed further evidence was directed to error by the primary judge.
Ground 2
[The respondent] falsely cultivated an alienation case
18.[The respondent’s] conversations about her threats of suicide and her other abusive actions caused the children to abscond from her, and [the respondent] maliciously cultivated an alienation case by causing the children to repeatedly flee.
19.[The appellant] seeks to adduce fresh evidence in the form of audio recordings, taken by the children in which they describe to [the ICL], and separately to [The family therapist], that [the respondent’s] actions had made them scared and caused them to run away from her.
20.[The ICL] and [the family therapist] misrepresented the children’s evidence and lied in Court.
21.The evidence given by [the respondent], [the ICL], and [the family therapist] is contradicted by, and shown to be consciously false by, the audio recordings and evidence given by the children during their interviews with [the ICL], and with [the family therapist].
(As per the original)
The appellant identified a series of items of evidence that he sought to adduce in support of this ground. As best as could be understood from him they were:
(1)a purported audio recording of an interaction between the children and the ICL from November 2021 that he asserted supported the proposition that the respondent and her friends had pressured the children to live with her;
(2)a purported audio recording of the elder child with the family therapist regarding the respondent having undermined his birthday party;
(3)a video recording that he made of an incident at the Subrub E Railway station; and
(4)a shadow expert report directed at the Single Expert, Dr O;
Dealing firstly with the purported audio recordings of the children and setting aside the issues that flow from the limited evidence led by the appellant to explain the recordings that he seeks to introduce, a fundamental difficulty in the appellant’s attempt to use comments purportedly made by the children is the primary judge’s assessment of both the views expressed by the children and the behaviour of the children in support of those views (at [133]–[154]).
The primary judge observed that the children’s negative views of the respondent had increased during a period where they did not spend time with the respondent, that they repeated a mantra common to the children and the appellant, and that as the final hearing approached, the children had become more strident, but without their views having any foundation in recent events, relying on a repetition of the matters with which the appellant was most concerned.
In particular, the primary judge observed that there appeared to be “a disconnect between the children’s expressed views and the objective evidence to support the position which they have taken” (at [133]).
Ultimately, the primary judge found that she could not place “any controlling weight” upon the views of the children because of the manner in which they had been formed (at [152]) and further identified that the views formed by the children were not rationally based (at [154]).
In the face of an assessment that the children’s views lacked rationality, the appellant’s reliance on purported further assertions by the children does not provide assistance to his case.
In the context of having made adverse findings about the respondent, the primary judge was aware of, and dealt with, the children’s adverse assertions about the respondent. Their repetition or amplification to the family therapist and the ICL does not improve the appellant’s case. This may be seen as particularly so in relation to the proposed birthday party evidence, as there was already material presented in the trial that reflected that the elder child blamed the respondent for issues with his birthday party. It remains unclear how such repetition as contained in the proposed further evidence, assists the appellant’s case.
Dealing then with the proposed evidence of a video recording made by the appellant of an incident taking place at the Suburb E Railway Station, it should be noted that this was an incident canvassed at trial. At trial, the appellant contended that the respondent had not been honest in her account of the interaction.
The appellant accepted that he had the video well in advance of the trial and made the decision not to raise it at trial. Under that circumstance, the recourse to the video is no more than a bare attempt to rerun the trial at first instance. As was observed by the High Court in Hsiao v Fazzari (2020) 270 CLR 588 at [53], the appeal is not the opportunity for the appellant to run a case that he chose not to run at trial.
The appellant should not be permitted to rely upon it, particularly where it remains unclear what factual error was purportedly made by the primary judge that the video was to address.
Dealing finally with the evidence in relation to Dr O, the appellant conceded that at trial he had chosen not to attack Dr O, after apparently receiving advice not to critique Dr O as much as he desired. Given such a concession, and even without having regard to the restrictions in the Rules in respect of adducing expert evidence, it is not appropriate to accede to the attempt to introduce a shadow expert, where the forensic choice was taken at trial to limit the attack upon the Single Expert. Again it is no more than an attempt to run a case at appeal that should have been run at trial, if at all.
There is no merit in this ground and no warrant to permit the introduction of the evidence that the appellant seeks to support it with. The ground does not establish any error in the judgment.
Ground 3
[The respondent] lied about her violent behaviour, including with a knife
22.Under cross examination on 31st January 2022 (day 1 page 31 line 33), [the respondent] answered:
You pressed the tip of the knife into your hand during this argument, didn’t you?---No, it was a different occasion.
23.In [the respondent’s] affidavit filed 28 Oct 2020 on Para 45: “I did have a knife in my hand and put the sharp edge down on my other hand. I did not draw blood.”
24.[The respondent] was admitted to the [T] Mental Health Clinic for three weeks following her violent outburst in which she was again brandishing a knife and threatening to kill herself and murder the children. On page 14 of the [T] Clinic subpoena material [the respondent] reported she had cuts on her hands “So you have any wounds or breaks on your skin? Self harm on hand”. [The respondent] lied under oath.
25.The children witnessed [the respondent’s] frequent violence and it scared them. Post separation [the respondent] continued to pressure the children to not report their experiences. [the younger child] described this to [the child psychologist].
“She was talking about how ‘she’s not the one starting the arguments – it was daddy’, and ‘it’s perfectly normal to have those tantrums. I wasn’t holding a knife’, but it isn’t perfectly normal to have those tantrums. And she was holding a knife, and she was the one screaming at daddy on the floor…”
- The audio clip is 25 seconds in duration.
12.The children also described [the respondent’s] violent outbursts to [the family therapist] and asked her to reduce the time they spent with [the respondent], but [the family therapist] ignored the children and lied to the Court regarding the evidence the children had given her.
13.[The appellant] seeks to adduce fresh evidence in the form of audio recordings, taken by the children, in which they describe to [the child psychologist], [the ICL], and [the family therapist], that [the respondent] had frequently threatened suicide and she continued to be psychologically abusive, and her behaviour scared the children and caused them to run away.
(As per the original)
To the extent that this ground also traversed the issue of the respondent making threats of self-harm to which the children were exposed, this issue has been dealt with in respect of Ground 1.
The apex factual issue pursued by this ground is the use of a knife by the respondent. The primary judge recited the evidence involving the knife in the following manner:
78.The next serious incident which [the appellant] sets out in his affidavit material is contained at paragraph 191(a) which deals with an event in October 2017 where [the appellant] said that [the respondent] had brandished a knife at him in the presence of [Y] and yelled “I hate you”. [The respondent] for her part did not deny that there may have been an occasion in which she and [the appellant] were having an argument and she had a knife in her hand, but she denied having ever brandished the knife at [the respondent]. That denial related also to [the respondent’s] allegation that she had done so on an occasion in June 2018 during an argument about finances.
To the extent that the records of T Mental Health Clinic may have undermined other evidence given by the respondent, such records were available at trial, as seen by reference to such records at Exhibit G. The appellant failed to identify that the primary judge was asked to ascribe any particular significance to the record that he now emphasises, nor how the primary judge is shown to be in error in reference to the record, particularly where the primary judge accepts that the respondent held a knife during an argument.
The appellant also sought to introduce what he described as audio recordings of the children speaking with the family therapist, the ICL and the child psychologist which the children saw.
Dealing firstly with the family therapist, the appellant conceded that the family therapist was not asked, during cross examination by the appellant’s counsel, questions to elicit the children’s comments regarding the respondent, which were now the subject of the audio recordings that he seeks to introduce. He explained that his barrister declined to do so. That is, this constitutes a further attempt by the appellant to run a case on appeal that he did not run at trial.
Dealing with the purported conversations with the ICL and the child psychologist, the observations made in relation to the previous ground regarding the primary judge’s conclusions about the children again mean that the appellant’s case is not assisted by recordings of the children.
Finally, in further support of this ground, the appellant contended that the primary judge was in error in dealing with evidence of a hospital admission of the appellant in relation to testicular issues, where the primary judge rejected his assertion that his issues were the product of harm occasioned to him by the respondent assaulting him.
The primary judge recited the evidence in relation to this admission in some detail between [58] and [67]. Taking careful account of the terms of the admission to hospital the primary judge concluded that by virtue of the nature of the messages that passed between the parties it was not open to conclude that the respondent had kicked the appellant as he asserted at trial. Further, the primary judge took further support for such a conclusion from the appellant’s conduct on admission to the hospital, observing that his sufferance of testing for cancer and sexually transmitted infections was also inconsistent with the appellant considering that his testicular discomfort was the result of a kick from the respondent.
No error is identified in the factual conclusion as to this incident as reached by the primary judge.
There is no merit in this ground and no warrant to permit the introduction of the evidence that the appellant seeks to support it with. The ground does not establish any error in the judgment.
Ground 6
[The respondent] lied to and manipulated others to make false statements in Court
35.[The appellant’s] position is that [the respondent] has successfully manipulated many individuals during these divorce proceedings to cause them to make factually incorrect statements.
36.The very fact that [the respondent] so skilfully hoodwinked [Dr O, Ms R], and others, including ultimately [the primary judge], demonstrates the danger [the respondent] poses to others, especially the children.
37.[The appellant] seeks to adduce fresh evidence in the form of a more thorough and detailed critique of [Dr O]’s report, including a Shadow Report from the Single Expert Witness [Dr NN], and a report from [the appellant’s] counsellor [Mr FF], whom [the appellant] was requested to attend upon by [Dr O] and the Court.
38.[The appellant] seeks to adduce fresh evidence in the form of a more thorough and detailed critique of [Ms R]’s report, including the numerous factual errors and false statements that are contradicted by [the respondent’s] and [Ms R]’s own statements.
(As per the original)
The collection of complaints about various witnesses, and the pursuit of further evidence (to the extent that such have not already been dealt with in answer to previous grounds) appear to culminate in the assertion that the primary judge was “hoodwinked”.
In his oral submissions the appellant concentrated on the primary judge’s assessment of the respondent’s mental recovery and improvement. The primary judge reasoned and found:
100. Ultimately, the evidence which deals with [the respondent’s] mental health is relevant only in so far as it establishes or fails to establish a deficit in her parenting capacity or establishes or fails to establish that her health places the children at risk of harm (which cannot be ameliorated by appropriate orders). [The respondent] has appropriate supports in place. [The respondent’s] mental health has improved since separation. [The respondent’s] treating psychologist and the single expert raise no concerns about her health placing the children at risk of harm.
The appellant is critical of the primary judge’s observation that:
53.[The respondent’s] medical history shows a long term commitment to obtaining medical and psychological assistance and unchallenged improvement in her health in the period since separating from [the appellant].
When asked to identify why such a finding was in error the appellant asserted that the primary judge failed to take into account increases in dosages in the medication taken by the respondent. He however accepted both that it was unclear what evidence established this and, importantly, that the primary judge was not asked to do anything with such evidence.
Error is not shown in the primary judge’s findings as to improvement in the respondent’s mental health and no basis for the reception of further evidence is established.
Ground 4
[The ICL] lied in Court
26.[The ICL] denied the children had reported hearing [the respondent] frequently threaten them directly that she will kill herself (“suicidal ideation”).
27.When [the ICL] spoke with the children on 25th January 2021 they gave detailed descriptions of long-term psychological abuse occasioned by [the respondent], including many threats [the respondent] made to them directly that she would kill herself.
28.Three days later, on 28th January 2021, [the ICL] lied in Court to His Honour Judge Monahan that the children did not report any “suicidal ideation” or similar abuse occasioned by [the respondent]. [The ICL] misled His Honour to believe [the appellant’s] evidence was false, and she acted to discredit [the appellant] and assist [the respondent’s] case.
29.[The appellant] seeks to adduce audio recordings, taken by the children, of the discussions they had with [the ICL] that prove she has knowingly lied and misled the Court since the inception of these proceedings, and in doing so has caused a miscarriage of justice.
(As per the original)
An ICL does not give evidence and so at best the appellant’s criticism of her must be as to submissions made, although it is not apparent what submission is the subject of criticism, nor how such relates to an error in the judgment.
To the extent that the appellant raised proceedings before Judge Monahan, the proceedings before his Honour concerned an interlocutory determination of the arrangements for the children. They were not the subject of the appeal.
The appellant has failed to identify the factual error made by the primary judge that was the result of the matters asserted at Ground 4. There is no indication that the further evidence is capable of showing error under such circumstances and no warrant for the adducing of the proposed further evidence.
Ground 5
[The family therapist] lied in Court, denying the children had reported hearing [the respondent] express suicidal ideation or ongoing psychological abuse.
30.When [the family therapist] spoke with the children on 10th October 2021 they gave detailed descriptions of long-term psychological abuse occasioned by [the respondent], including threats [the respondent] made to them directly that she would kill herself.
31.When [the family therapist] spoke with the children on 12th November 2021 they gave detailed descriptions of unpleasant situations with [the respondent], including the respondent’s friend [Mr BB] yanking [the younger child] by his arm and [the younger child] said “…it really hurt”.
32.Under oath [the family therapist] fabricated stories and lied regarding the discussion she had with the children on 12 November 2021. The disparity between what the children said and the oral evidence [the family therapist] gave is stark, and shows deliberate deception.
33.[The appellant] seeks to adduce audio recordings, taken by the children, of the discussions they had with [the family therapist] that prove she knowingly lied in Court under oath and in doing so has caused a miscarriage of justice.
34.[The appellant] seeks to adduce fresh evidence in the form of audio recordings, taken by the children of their session with [the family therapist] on 12th November 2021.
(As per the original)
This aspect of the appeal was directed at the evidence of the family therapist. It remained unclear what factual error was asserted to be made by the primary judge as a result of the purported deficiencies in the evidence of the family therapist.
In attempting to identify error by the primary judge the appellant referred to [47] of the reasons. However, this was not a finding by the primary judge but rather was a correct recital of the evidence given by the family therapist of the children appearing to be relaxed in the respondent’s household.
The appellant was asked to identify what the family therapist was questioned about that should have been answered differently in light of the proposed further evidence. He pointed to where the family therapist was asked by counsel for the ICL to give an example of the children providing to her a “preconceived narrative”, being the description that she gave to the manner in which the children spoke about the respondent.[1]
[1] Transcript 2 February 2022, p.237 line 37
In response to the request for an example the family therapist said:
[THE FAMILY THERAPIST]: … The children said to me a number of times that “Mummy wants to kill herself” and when I asked how did they know that, they both said, “we just know.” And then they looked at each other and they had said. “And we can’t – we’re not allowed to go in the car with Mummy because we think she might want to take us with her.” Now this was an ongoing, rehearsed kind of speech, because when I asked them about it, they had no other language around what to say about this. …
(Transcript 2 February 2022, p.237 lines 41–47)
The appellant’s complaint that the recordings dictated a different answer was undermined, firstly by the request of the family therapist being merely for an example that related to her opinion that the children spoke to a “preconceived narrative” and, importantly, by his concession that he did not have recordings of all sessions between the children and the family therapist. Under those circumstances, he could not assert that the family therapist had been inaccurate in the example that she provided to her answer to counsel for the ICL.
The appellant further departing from his appeal grounds, sought to attack evidence given by the family therapist about the children favourably referring to the respondent making bacon and egg rolls (Transcript 2 February 2022, p.239 lines 33–36). The appellant asserted that the evidence of the family therapist was false on the basis that the recording of 12 November 2021 did not support the notion that the respondent made such a provision of bacon and egg rolls to the children.
However, even if it was to be accepted that the recording of 12 November 2021 did not support the provision of bacon and egg rolls, it was not apparent that the family therapist was speaking to the time frame imputed by the appellant. Further, as identified above, the appellant has conceded that he does not have recordings of all interactions between the family therapist and the children. Under such circumstances neither a deficiency on the evidence of the family therapist can be established, nor an error in the primary judge’s factual findings.
The appellant conceded that he was unable to identify any question that the family therapist was otherwise asked that she had failed to answer on terms that he considered were necessitated by the recordings that he sought to adduce.
The appellant, again departing from his appeal grounds, criticised the following aspect of the family therapist’s evidence, where she offered the description that the children:
[THE FAMILY THERAPIST]: … had a view that I would be able to talk directly to the judge and have some magical influence, and if they told me what they wanted, then I would make it happen.
(Transcript 2 February 2022, p.239 lines 11–12)
The appellant was highly critical of this evidence, asserting that the family therapist had represented to the children that she did in fact have magical powers, and that she asserted that she had special powers like the Avengers (fictional movie characters apparently possessed of supernatural and/or other special powers). The appellant then, in support of this criticism relied on recordings purportedly taken of the children, where the family therapist had asserted to the children that she did not have a magic wand, and that she did not have special powers like the Avengers, merely special powers to do things differently. It may be observed that the family therapist, on the terms of the appellant’s proposed evidence, had explained to the children quite clearly that she did not have magical powers.
The appellant’s criticism of the family therapist was entirely misplaced. Rather than revealing that the family therapist was somehow unfair to the children in her description that they considered that she could exert a magical influence, the appellant’s approach revealed a highly idiosyncratic perspective brought by him in his assessment of the evidence.
Finally, the appellant complained that the family therapist had failed to report that the younger child had described an incident where he was grabbed by the arm and yanked by an associate of the respondent, Mr BB.
However, the family therapist, when cross examined by the appellant’s counsel on the basis of notes that she had provided to the court, had accepted that the younger child had reported being yanked and pulled by the arm and that it had hurt a lot (Transcript 2 February 2022, p.250 line 38). The appellant’s criticism was misplaced.
There is no merit in this ground and no warrant to permit the introduction of the evidence that the appellant seeks to support it with. The ground does not establish any error in the judgment.
Conclusion
The Application to Adduce Further Evidence is refused for the reasons set out in relation to each of the grounds that it was argued to support.
The appeal is unsuccessful as it has failed to demonstrate error on the part of the primary judge.
Costs
In the event that the appeal was unsuccessful, the respondent indicated that she pursued costs against the appellant in the sum of $8,900.37 as set out in her costs notice filed 22 August 2022, and that she would seek the opportunity to adduce further evidence in respect of such an application.
Directions will be given to enable evidence and written submissions on the issue of costs such that the matter may then be determined on the papers.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Bennett & Gill. Associate:
Dated: 22 November 2022
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