Sandex and Bondir
[2019] FamCAFC 71
•24 April 2019
FAMILY COURT OF AUSTRALIA
| SANDEX & BONDIR | [2019] FamCAFC 71 |
| FAMILY LAW – APPEAL – Where three of the four grounds of appeal are misconceived and have no merit – Where there is no error by the primary judge as alleged in the other ground of appeal – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 94AA, 121 Family Law Regulations 1984 (Cth) reg 15A |
| Sandex & Bondir (No. 2) [2015] FamCAFC 206 Sandex & Bondir (No. 2) [2017] FamCAFC 130 |
| APPELLANT: | Ms Sandex |
| RESPONDENT: | Mr Bondir |
| FILE NUMBER: | MLC | 1139 | of | 2008 |
| APPEAL NUMBER: | SOA | 40 | of | 2018 |
| DATE DELIVERED: | 24 April 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 20 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 May 2018 |
| LOWER COURT MNC: | NA - Transcript |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandex & Bondir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 40 of 2018
File Number: MLC 1139 of 2008
| Ms Sandex |
Appellant
And
| Mr Bondir |
Respondent
REASONS FOR JUDGMENT
Introduction
By way of Notice of Appeal filed on 12 June 2018, Ms Sandex (“the mother’) appeals against an order made by Judge Bender on 14 May 2018, dismissing her Application in a Case filed on 30 April 2018 seeking, inter alia, leave to institute parenting proceedings between her and Mr Bondir (“the father”) concerning their two children X and Y, now aged 17 years and 15 years, respectively (“the children”).
As a result of the ongoing litigation between the parties, and the considerable psychological harm that any further litigation may cause to the children, on 24 January 2017 the primary judge ordered that pursuant to s 64B(2)(g) of the Family Law Act 1975 (Cth) (“the Act”) the mother be restrained from filing any application for parenting orders without first seeking and obtaining leave to do so by a judge of the Federal Circuit Court. The application before her Honour was made pursuant to that order.
The father did not participate, nor was he required to participate, in the hearing of the application for leave or in the hearing of this appeal.
Background
The parties commenced cohabitation in 1996, married in 1999 and separated in August 2007.
In June 2008 the parties entered into final parenting and property orders by consent. The parenting orders provided that the parties have equal shared parental responsibility for the children, that they were to live with the mother and spend time with the father five nights per fortnight.
The mother filed an Initiating Application on 10 December 2013 seeking variation of those orders.
On 5 March 2015 Judge Baker made final parenting orders, including that the father have sole parental responsibility for the children, that they live with him and spend time with the mother. The primary judge found that the children have a warm and positive relationship with their father and that they wanted to live primarily with him. In coming to that finding the primary judge took into account the family report prepared by Mr T, the family consultant, and a psychiatric report prepare by Dr T.
The mother’s appeal against those orders was dismissed by the Full Court (see Sandex & Bondir (No. 2) [2015] FamCAFC 206).
Both at trial and in the appeal, the mother sought to argue that the views of the children were incorrectly taken into account by the report writers.
On 19 November 2015 the mother filed an Initiating Application seeking discharge of the 5 March 2015 orders and, in lieu thereof, orders that she have sole parental responsibility for the children and that they live with her.
The children were interviewed by Ms B for the purposes of preparing a family report. The report recorded that the children have a positive and loving relationship with the father and that they were thriving in his care.
Ms J recommended that the father have sole parental responsibility for the children, that they live with him and that their time with the mother be suspended until she had obtained treatment for her own psychological health.
The mother challenged Ms B’s evidence.
Her evidence was that the children were not expressing their genuine views to Ms B, or any previous report writer, because they were fearful of potential retribution from the father.
An interim hearing was conducted and orders made suspending the mother’s time with the children, but allowing for a weekly telephone call.
On 24 January 2017 Judge Bender dismissed the mother’s application and made orders that the father have sole parental responsibility for the children, that they live with him and spend time with the mother.
The mother’s appeal against those orders was dismissed by the Full Court on 14 July 2017 (see Sandex & Bondir (No. 2) [2017] FamCAFC 130).
In respect of the 2017 appeal, the mother sought leave to adduce further evidence. The evidence sought to be relied upon was described by the Full Court as falling into two categories; the first being evidence of circumstances that had occurred since the making of the orders under appeal, and the second being evidence “by way of a critique or review of the expert reports relied upon by the primary judge and in which it was asserted that the reports were flawed by reason of errors and by being false, incomplete, inaccurate, and misleading” (at [36]).
The Full Court dismissed the mother’s application for leave to adduce this evidence and said in relation to the second category:
40. Dealing with the critique or review of the expert reports that was provided by Ms M, who writes for an advocacy service. Ms M contends, based on the mother’s assertions that there are errors in the expert reports that require amendment under the Health Records Act 2001 (Vic) (“the Health Records Act”). As we understand the thrust of Ms M’s reviews, it is that the reports of the consultants engaged in the proceedings must be “corrected” to remove errors and misleading information.
41.First, the Health Records Act has no application to forensic reports obtained for the purposes of proceedings in the Federal Circuit Court.
42. Secondly, Ms M’s assertions as to error are based on the mother’s instructions to her that the reports were so flawed. Ms M’s curriculum vitae which was attached to her documents show that she has no apparent qualifications which would allow her to consider and review the expert reports.
43.Clearly then, this “evidence” could not be admitted by this court, and in any event it does not satisfy the requirements set out in CDJ v VAJ for the receipt of further evidence.
The Application before the primary judge
On 30 April 2018 the mother filed her Application in a Case, together with a supporting affidavit.
The Application sought the following orders:
1.That all times be abridged to have this Application heard as a matter of urgency.
2.That the mother be granted leave to file application requesting this case be urgently reviewed by the court with fresh eyes.
3.That the ICL is dismissed from the case as a consequence of previously attempting to pervert the course of justice
4.That the family reports in this case are either dismissed from the case or only read in conjunction with the review of Ms M of […] as per the Health Act
5.That the Applicant’s costs be reserved.
(as per original)
The overarching complaint contained in the mother’s affidavit filed in support of her application for leave was that the previous judgments were “grossly inaccurate” as a result of being based on family reports that are “false, fraudulent, inaccurate, incomplete, misleading” and “from report writers without the necessary qualifications”.
The basis of the mother’s complaint is set out at paragraph 12 of her affidavit:
12.The reports in our case have been reviewed by [an advocacy service] who have compiled reports on the family report by [Mr T], on the psychiatric report of [Dr T] & the family report of [Ms B] & show how false, inaccurate, misleading, incomplete & inconsistent the family reports are & that they have been written by supposed professionals who have little if any training & experience in Family Violence issues of which there is substantial history in our case. ..
The mother annexed the reports and the critique of them to her affidavit.
Reasons of the primary judge for dismissing the application
The application for leave came before her Honour on 14 May 2018 and was heard in conjunction with the mother’s application alleging contravention.
Her Honour determined to dismiss the mother’s application for leave and her Honour’s reasons for judgment are contained in the transcript of the hearing that day. It is convenient to set out those reasons as they appear in the following exchange:
HER HONOUR: …Okay. Now, the second thing is, [Ms Sandex], this is just another attempt by you to try and re-litigate parenting matters, and
- - -
[MS SANDEX]: No, your Honour. Sorry.
HER HONOUR: Frankly, I’m not going to give you leave. All the matters – and I’ve only scanned the document, but showing the family reports to someone who has not interviewed the children and who has not been privy to the entirety of the evidence – they may or may not agree with the conclusions drawn by the experts. They weren’t privy to the cross-examination of those experts and your ability to, and those who have represented you in previous proceedings, challenge those experts.
But there have been findings made by not only me but my previous judicial officers and, more relevantly, the Full Court of this court, all of which have upheld the findings that have been made in relation to the totality of the evidence. So there is nothing in the material before me that persuades me that there is any basis upon which I would grant you leave to try and reopen these proceedings, and I am not going to give you leave to issue further proceedings as far as this case is concerned.
[MS SANDEX]: Your Honour, the review of the reports, in conjunction with the ..... those reports cannot now only be read in conjunction with the review of the reports. But those – the review of those reports exposed how false and fraudulent and inconsistent and incomplete and misleading those reports are, and it’s those reports that have been used by yourself and previous situations to put the children into such a despicable situation where they live daily in fear. These are kids who are - - -
HER HONOUR: [Ms Sandex] - - -
[MS SANDEX]: - - - terrified every day.
HER HONOUR: Again, [Ms Sandex], the time to challenge the reports was when the matter was before the court. It can’t be done retrospectively. You, when the matter was before me, cross-examined [Ms J] at length, and I was satisfied as to the veracity of her evidence. When the matters were before Judge Baker, the report writers that were providing evidence to the court at that time were also subject to extensive cross-examination, and her Honour made the findings that she did.
I’m not going to revisit that evidence. This is not the manner in which it should be done and can be done, and there is nothing in the material that you filed that satisfied me that this is nothing – and, again, I’m not and never have doubted your absolute beliefs that those who have interviewed the children and this court have got it completely wrong, but the findings have been made.
You have gone through all channels, including seeking leave to take this matter to the High Court, and the reality is that the findings that have been made have been made, and they cannot be disturbed, and they cannot be disturbed in this manner. And, as such, I am not going to give you leave to institute further proceedings as far as this matter is concerned, and, as such, your application will go no further.
(Transcript 14 May 2018, p.8, line 12 – p.9, line 15)
The Grounds of Appeal
The mother agitates four grounds of appeal but it is arguable that leave to appeal is required here; the decree made is procedural, and is not a final order determining the mother’s substantive rights. The only question though is whether it is an interlocutory decree in relation to a child welfare matter, and thus leave to appeal is not required (s 94AA of the Act and regulation 15A of the Family Law Regulations 1984 (Cth).
The mother has not sought leave to appeal, and I have not heard argument as to whether it is required or not. However, in the end result it is unnecessary to determine this issue. It is readily apparent that if the mother had sought leave to appeal she would be relying on the success of her grounds of appeal to obtain leave. Plainly then, if there is no merit in those grounds of appeal, not only would leave to appeal not be granted, but if it was, the appeal would be dismissed. Thus, I will consider the grounds of appeal in that context.
Ground 1
The Judge failed to read the application in its entirety, she even stated in court, she had only scanned the application instead of reading it.
It is correct that her Honour says that she only scanned the mother’s affidavit in support of her application, but that does not demonstrate error by the primary judge.
A judge is only required to read what is necessary for the purpose of deciding the application before the court, and here her Honour was well familiar with the history of these proceedings, including the evidence and the reports placed before the court. Her Honour was clearly able to discern whether there was any information in the affidavit which was new, and which required the parenting orders to be revisited.
There is no merit in this ground of appeal.
Ground 2
The Judge attempted to intimidate, threaten and manipulate the applicant, a self represented litigant by falsely accusing the applicant of breaching section 121 of the Family Law Act (as per original).
Section 121 of the Act reads as follows:
Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
With regard to the reports and their critique attached to the mother’s affidavit, her Honour said this at the hearing of the application (Transcript 14 May 2018, p.7, line 34 – p.8, line 12):
HER HONOUR: [Ms Sandex], I have an initial difficulty with your application in any case in that you are in breach of section 121 of the Family Law Act. It is apparent that you shave [sic] shown documents to someone else that was not a party to the proceedings, who has, as a result of your actions, been able to identify those who are involved in the case. That’s a clear breach of 121 of the Act. You cannot show any of the documents in these proceedings to anyone without the leave of the court.
The protection of – under the Act, the court is very, very strict on protecting the privacy of parties, particularly children, to proceedings and not allowing publication, which has got a very broad interpretation, of anything that would enable parties or children to be identified unless the court has consented to that taking place. Now, you’ve clearly shown someone who is not a party to the proceedings documents that were prepared for the purposes of these proceedings and identifies those parties to someone that – the parties and the children to someone who was not a party to the proceedings.
Now, the Act is very serious in this, and it deposes that anyone who does so commits an offence punishable upon conviction by imprisonment for a period not exceeding one year. That’s how seriously the court takes it. That’s not something I’m intending to do because I’m not believing you’ve done this in any kind of malicious or deliberate purpose, but I have to bring that to your attention and indicate to you that what you’ve done is in breach of the legislation.
Now, that was the first thing I wanted to say to you. I’m not going to take it any further. I’m bringing it to your attention.
The mother’s disclosure of the court ordered reports to Ms M is prima facie a breach of s 121. The mother suggested that there was no breach because the provision of the reports to Ms M, who undertook their critique, was permitted pursuant to s 121(9)(f)(i). That provides that s 121 does not apply to or in relation to:
…
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or …
As to this submission, it has not been demonstrated that Ms M comes within this category. As commented on by the Full Court in [42] of the reasons for judgment delivered on 14 July 2017, her curriculum vitae does not indicate that she has any professional qualifications relevant to the matters before the court, and particularly to be able to critique the reports that were relied on by the court. Further, there is no satisfaction of the requirement that she is a member of a profession, and the reports were provided to her in connection with the practice of any profession.
In any event, her Honour did not make that the reason for dismissing the mother’s application for leave. Appropriately her Honour considered it necessary to raise this with the mother who was without legal representation, and alert her to the breach. Her Honour then put that aside and turned to address why the application had to be dismissed.
There is no error here, and no merit in this ground of appeal.
Ground 3
The judge falsely threatened that she could pursue a breach of section 121 [of the Act] which could result in jail time.
This is also a ground of appeal that cannot succeed. It is as misconceived as Ground 2. Her Honour made no threats, and to repeat, her Honour was alerting the mother to the fact that she was in breach of s 121 and that such a breach could have serious consequences. Again, this breach was not the reason why her Honour dismissed the mother’s application.
Ground 4
The judge failed to read the reviews of the family reports which were part of the application and acknowledge that due to the misdirection of false, fraudulent, inaccurate, incomplete and misleading family reports from report writers without the necessary qualifications she had been misguided and made a grossly inaccurate judgement (sic) which had forced to (sic) children to live in daily fear and misery.
This is also a ground of appeal that is misconceived and has no merit.
The mother’s complaints about the reports relied on by the primary judge at the hearing culminating in the final orders made on 24 January 2017 were the subject of the mother’s appeal from those orders, and which appeal was dismissed by the Full Court on 14 July 2017. Further, as referred to above, the mother sought to adduce further evidence in that appeal comprising the critique by Ms M of the reports that were before the primary judge, but that application was dismissed. Thus, it was not open for the mother to seek to raise the same arguments again on the application for leave to institute proceedings, and her Honour was correct to dismiss the application on that basis.
Conclusion
Having found no merit in any of the grounds of appeal, leave to appeal cannot be granted even if required. However, I propose simply to dismiss the appeal.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 24 April 2019.
Associate:
Date: 24 April 2019
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