Sarkozy & Sarkozy (No 3)
[2024] FedCFamC1A 178
•10 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sarkozy & Sarkozy (No 3) [2024] FedCFamC1A 178
Appeal from: Sarkozy & Sarkozy [2024] FedCFamC1F 338 Appeal number: NAA 148 of 2024 File number: SYC 4887 of 2021 Judgment of: AUSTIN, WILLIAMS & SCHONELL JJ Date of judgment: 10 October 2024 Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from final parenting orders – Where the orders provide for the children to spend confined time with the mother once every three months under supervision – Where the mother does not make clear the nature of the alleged bias by the primary judge – Where the alleged prejudgement by the primary judge of the mother’s mental health is rejected – Where the refusal of the mother’s adjournment application neither constituted nor resulted in her denial of procedural fairness – Where the complaint of factual errors lack specificity and are rejected – Where the complaint of discretionary errors is rejected – Where the complaint of inadequate reasons is not addressed in the Summary of Argument and is rejected – Appeal dismissed – Where the father did not seek an order as to costs – Where the mother’s penury precludes any costs order against her in favour of the Independent Children’s Lawyer – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 102NA, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15
Sarkozy & Sarkozy [2024] FedCFamC1A 172
Sarkozy & Sarkozy (No 2) [2024] FedCFamC1A 176
Number of paragraphs: 60 Date of hearing: 1 October 2024 Place: Sydney The Appellant: Litigant in person Solicitor Advocate for the Respondent: Mr Chegwidden Solicitor for the Respondent: Graham Chegwidden Solicitor and Barrister Counsel for the Independent Children's Lawyer: Mr Livingstone Solicitor for the Independent Children's Lawyer: Marsdens Law Group ORDERS
NAA 148 of 2024
SYC 4887 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SARKOZY
Appellant
AND: MR SARKOZY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, WILLIAMS & SCHONELL JJ
DATE OF ORDER:
10 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 18 June 2024 is dismissed.
2.The application for costs made by the Independent Children’s Lawyer against the appellant is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sarkozy & Sarkozy (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & SCHONELL JJ
This appeal is brought by the mother from final parenting orders made between the parents in respect of their children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 21 May 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 1).
The appeal is dismissed for the following reasons.
BACKGROUND
The parties were married in 1997 and separated in March in 2021.
They have five children. The three eldest children had attained their majority by the time the parties separated and departed the former family home of their own accord at or about that time. Upon separation, the father vacated the family home and took the two youngest children (“the children”) with him.
The children were born in 2011 and 2014 and are now aged 13 and 10 years respectively.
Not long after the parties’ separation, the father and the children returned to live at the family home but, following the mother choking one child soon afterwards, he and the children again moved elsewhere. Later, in June 2021, the police issued a provisional family violence order against the mother for the protection of the child she assaulted. Proceedings under Pt VII of the Act were commenced by the father contemporaneously with the family violence order being made against the mother.
Interim orders were made in July 2021 providing for the children to live with the father, but the orders intentionally made no provision for them to either communicate or spend time with the mother. The orders restrained the mother from telephoning the children and from entering the father’s residential premises. No other interim orders were made as the litigation progressed to trial.
In October 2023, the proceeding was listed for trial in April 2024 and procedural directions were made to ensure the parties’ readiness for hearing.
By March 2024, only a week before the trial was due to start, the mother was still in default of the procedural directions and her lawyers applied to vacate the trial (at [8]), which application was dismissed (at [9]). Then, at the start of the trial, the mother’s lawyers were granted leave to withdraw their representation of her and so she represented herself thereafter (at [10]).
The mother was unsurprised by those developments. She was informed by her lawyers several days in advance of the trial of their intention to terminate the retainer and so she prepared and filed her own Case Outline document and “extensive affidavit” before the trial started. As the trial began, she tendered numerous exhibits, though some documents she tendered were rejected for reasons explained by the primary judge (at [11]). During the trial, the mother challenged the single expert psychiatrist’s opinion evidence in cross-examination (at [12] and [37]) and she made final submissions to the primary judge once the evidence was closed.
It is evident from the reasons for judgment that the primary judge was motivated to accept and act upon expert opinion evidence given by the single expert psychiatrist (at [41]). In his report, the single expert opined the mother was suffering from a “[mental health disorder]” which was “fuelling her erratic behaviour” and caused her to pose “an unacceptable risk [of harm]” to the children (at [3], [38] and [39]).
The single expert’s recommendation in respect of future interaction between the children and the mother was stated as follows in his report, which the primary judge quoted (at [3] and [40]):
In relation to contact [between the children and the mother], this is difficult in that I believe [the mother] is mentally unwell and therefore finds it difficult to control her thoughts and belief patterns. Contact would need to be closely supervised. Under the current situation it would need to occur perhaps once every three months in a recognition style of contact…
The father and the Independent Children’s Lawyer (“the ICL”) both sought orders for the children to live with the father and his conferral with sole parental responsibility for them. As for the children’s interaction with the mother, they proposed orders which aligned with the single expert’s evidence about its frequency and supervision (at [15] and [17]).
Conversely, the mother sought orders for the children to live with her and for her to have sole parental responsibility for them. Her ultimate proposal for the children’s interaction with the father remains unclear. The primary judge recorded the mother’s proposal was for the children to spend only limited supervised time with the father (at [16]), but her proposal at the start of the trial was for the children to spend substantial amounts of unsupervised time with the father and she made final submissions to similar effect. Of course, if the mother did propose that the children spend substantial amounts of unsupervised time with the father, the proposal was completely antithetical to her vociferous criticisms of his parenting capacity.
In summary, the orders made by the primary judge provided for the father to have sole parental responsibility for the children (Order 1), for them to live with him (Order 2), and for them to spend only very confined time with the mother once every three months under the supervision of nominated adults or a private supervision service until the children turn 14 years of age, after which time the mother must respect the children’s wishes (Order 3). The orders reflected the single expert’s evidence, were consistent with the proposals of both the father and the ICL and were the manifestation of the primary judge’s finding that the mother posed a risk of harm to the children which could only be ameliorated by them spending infrequent supervised time with her (at [41], [43] and [50]).
Otherwise, the mother was authorised to correspond with the children (Orders 4(c), 6 and 7), but was restrained from attending the children’s church, school and other extra-curricular events (Order 5). The parties were mutually restrained from involving the children in their conflict and from administering physical discipline to them (Orders 4(a), 4(b) and 4(d)).
The mother’s appeal was brought from Orders 1, 2, 3, 5, 6 and 7.
THE APPEAL
The mother sought leave to appeal, but it is unnecessary. She has an unconditional right to appeal from the final parenting orders.
Two business days before the appeal hearing, the mother filed an Application in an Appeal seeking, first, the disqualification of two of the three judges on the Full Court and, secondly, an adjournment of the appeal hearing. The two disqualifications applications were heard and dismissed before the appeal hearing commenced, in the manner envisaged by the High Court (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419), for which ex tempore reasons were given (Sarkozy & Sarkozy [2024] FedFamC1A 172; Sarkozy & Sarkozy (No 2) [2024] FedCFamC1A 176). The adjournment application was then dismissed by the Full Court, reasons for which decision were reserved along with the reasons in the appeal.
The adjournment was refused because the parties and the ICL were ready to proceed. They had filed their Summaries of Argument on time and the only reasons given by the mother for an adjournment were these in her affidavit filed on 27 September 2024:
2.I seek orders to adjourn so that I can have further time to adduce evidence and file.
…
4.I do not have access to Legal Aid NSW and private legal representation, and I need more time to understand and process how to participate in the requirements of the Federal Circuit and Family court.
When invited to clarify the documents she wanted to adduce or “file”, the mother could not clearly identify them, besides those rejected by the primary judge at the start of the trial and more records from the children’s school. But some school records were already in evidence (Exhibit 8) and the mother could not explain how even more school records could make any difference to the outcome of the appeal. She has had ample time within which to file an application seeking leave to adduce further evidence in the appeal. Any prejudice which may flow from her failure to do so should be borne by her, not by the father and the children. Given the mother filed her Summary of Argument on time, there was nothing else she needed to “understand and process” about the appeal hearing.
The mother did fail to comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), as her Summary of Argument did not deal sequentially with each of the 12 grounds of appeal, explaining the error alleged by each. Rather, her Summary of Argument was a roving commentary generically alleging unfairness of the trial and the judgment, but we will address the complaints she has raised.
Ground 2
This ground complains of the primary judge’s bias without making clear whether the alleged bias was actual or apprehended, which is a significant lacuna when the tests for each are quite different. The lack of precision about the nature of the alleged bias tends to deprive the allegation of any force because the different tests cannot be conflated (Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67], [68] and [73]).
The submissions which allege or imply judicial bias within the mother’s Summary of Argument were confined to two points: first, by the primary judge wrongly allowing the parties’ eldest adult child (Ms L) to remain in Court prior to her cross-examination, which approach was supposedly “evidence of bias”; and secondly, by the primary judge “prejudging” the mother’s state of mental health to be the pre-eminent issue in the case.
As to the first point, the father relied upon Ms L as a witness, though she was not cross-examined at all. The mother elected not to cross-examine her (at [14]). So did the ICL. As Ms L was not cross-examined on her evidence-in-chief, there could be no question of her evidence being contaminated by having heard the oral evidence of any other witness.
As to the second point, the mother’s submissions were expressed this way:
…The judge took the major issue to be mental health, instead of the best interests of the children…
…
…the judge had prejudged that the issue was mental health…
(Mother’s Summary of Argument, p.5 and 9)
Indeed, the state of the mother’s mental health was a significant issue in the proceeding, but the primary judge’s references to the issue within the reasons for judgment were integral to his Honour’s concluded judgment, having heard all the evidence. There was no “prejudgment” of either the mother’s deteriorated state of mental health or the broader salient factual issues which required resolution and, without prejudgment, there could neither be an actuality nor an apprehension of bias.
Ground 1
This ground complains of the mother’s deprivation of procedural fairness.
The submissions which either allege or imply the mother’s deprivation of procedural fairness in her Summary of Argument were these:
His Honour refused an adjournment on Thursday 28 March…I was not afforded a reasonable opportunity to present a case in the circumstances, I was pressured on the spot, and the court pushed ahead which did not assist the court to resolve issues of fact and to understand the evidence as I was denied the opportunity for fairness when the [father] had [lawyers] for the past three years…
…
…The judge did not guide the process by which evidence was tendered when I sought permission to tender [certain nominated evidence]…
…
…The judge did not accept the standalone affidavit by [Ms R]…
…
…The primary judge had records which were held by the court and unavailable to the parties…
(Mother’s Summary of Argument, p.3, 6, 8 and 9)
As to the refusal of the adjournment application several days in advance of the trial, the primary judge said this in the reasons for judgment:
8.On 27 March 2024, a lawyer instructed by the mother applied to vacate the hearing. There was no evidence to support the application and no reason was given for the non-compliance with the orders of [named judge]. I was informed that a draft affidavit had been prepared, but that the lawyers would not be ready to run the hearing on the mother’s behalf by the following week.
9.For reasons given at the time, the application was dismissed and the lawyers were not excused from appearing.
The simple refusal of the adjournment application neither constituted nor resulted in the mother’s denial of procedural fairness. As already noted, she was ready for the trial with her Case Outline document and her affidavit, albeit belatedly prepared. The mother was afforded the opportunity to present her own case and to challenge the case made against her by the father and the ICL, which is the basal requirement of procedural fairness (Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99–100; Kioa v West (1985) 159 CLR 550 at 582; National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296 at 312).
The primary judge gave the mother an explanation of how the trial would proceed before it started. His Honour identified the material upon which the father and the ICL relied and then helped the mother identify the evidence upon which she wished to rely, holding over to the next day the question of whether she should be permitted to rely upon an affidavit of Ms R, whose short affidavit related only to her mentorship of Ms L six years before. The trial was then adjourned at 12.13 pm to resume the next day.
The next morning, the primary judge worked through the list of documents the mother wished to tender in evidence. In particular, the affidavit of Ms R was not received into evidence because it was perceived to be irrelevant, but the primary judge told the mother she could renew her application to rely upon the affidavit after she had cross-examined Ms L. She did not renew the application when she eventually decided not to cross-examine Ms L. Some of the other tendered documents were admitted, but many were rejected. Those evidentiary rulings were required of the primary judge when the admissibility of the evidence was contested. The correct rejection of evidence upon which the mother wanted to rely does not amount to her denial of procedural fairness.
Lastly, the allegation that the primary judge possessed documents to which the parties were denied access is a misconception. The primary judge adjourned the trial early on the first day to enable the mother to be prepared for a fresh start the next day, in part, by allowing her more time to inspect the documents which had been produced to the Court in answer to subpoenas and to marshal any of those documents she wished to tender. The primary judge affirmed with the mother the next morning how documents which are produced to the Court in answer to subpoenas did not form part of the evidence until tendered as exhibits, saying this:
[The mother]: All the Child Protection Helpline reports were subpoenaed by the other party.
HIS HONOUR: Well, I don’t – just because it’s subpoenaed doesn’t mean it’s in front of me, or I’ve read it…I don’t get the subpoenaed documents unless someone tenders them.
(Transcript 3 April 2024, p.33 lines 9–14)
The complaint of the denial of procedural fairness is rejected.
Grounds 4, 8 and 9
These three grounds complain of factual errors in the following terms:
4. There were factual errors that have influenced the outcome of the proceedings;
…
8.The judge arrived at a factual conclusion unsupported by all available evidence;
9.The Reasons for Judgment contains contested and disputed facts without evidence to support the ultimate conclusion…
As can be seen, the allegedly mistaken facts are not identified by the grounds. Nor are the mistaken facts identified in the mother’s Summary of Argument, thereby breaching r 13.23(3) of the Rules.
The only submission relevantly made in the Summary of Argument is this:
…The Reasons for Judgement are also riddled with errors of fact…
(Mother’s Summary of Argument, p.4)
In the absence of any specificity, the allegations of factual error are rejected.
Grounds 3, 6, 7, 11 and 12
These five grounds complain of discretionary errors in the following terms:
3. The judge failed to properly consider the evidence;
…
6.The judge accepted the Family Report and a diagnosis by the Single Expert and Affidavits of [the husband] and [Ms L] without adequate assessment;
7.The judge failed to accept all available evidence and overlooked crucial information;
…
11.The judge took into account irrelevant considerations;
12.The judge failed to take into account the domestic violence and coercive control by the [husband] toward the children…
Ground 6 complains the primary judge accepted the evidence of the single expert, the husband, and Ms L “without adequate assessment”.
Significantly, the mother chose not to cross-examine Ms L when given the chance (at [14]), so she can have no complaint about the acceptance of Ms L’s unchallenged evidence.
The mother could not cross-examine the father by reason of an order made in September 2023 under s 102NA(1)(c)(iv) of the Act binding both parties, which order the mother successfully sought. Nevertheless, the ICL did cross-examine the father, so his evidence was not entirely untested. The mother failed to explain how she alleged the primary judge failed to adequately assess the reliability of the father’s evidence.
The mother did cross-examine the single expert but, notwithstanding her challenge, the primary judge found his opinion evidence to be persuasive. The acceptance of the single expert’s evidence was thoroughly explained in the reasons for judgment. There was no patent error.
Ground 12 alleges the primary judge failed to take into account two specific aspects of the evidence: first, evidence of “domestic violence”; and secondly, evidence of the father’s “coercive control” of the children. The complaint is incorrect on both counts.
As to the first proposition, the primary judge considered the evidence adduced by both parties about family violence (at [45]–[49]). Aside from one violent incident which the father admitted (at [46]), the primary judge found the mother’s evidence to be improbable (at [49]), but in any event observed how her evidence of family violence would not change the outcome even if it was accepted (at [49]) due to the risk of harm she posed to the children.
As to the second proposition, the primary judge found the children love the mother and still wish to maintain relationships with her (at [43]), which finding was irreconcilable with any contention advanced by her that the father influenced the children against her. The mother’s contention the children were “coerced” by the father is seemingly confined to the proposition that he intentionally prevented them from spending time or communicating with her, or at least he failed to ensure they did so. However, the father was rightly concerned about the children’s physical safety when in the mother’s care and no interim orders were ever made requiring the children to either spend time or communicate with her. The interim orders made in July 2021 actually restrained her from contacting them. The mother did not otherwise allege any violent or abusive behaviour by the father against the children (at [50]).
Above and beyond the complaints already covered by Ground 12, Grounds 3 and 7 are unspecific about the nature of the evidence the primary judge allegedly overlooked, failed to properly consider, or failed to accept. However, the mother makes several submissions on the topic in her Summary of Argument.
First, the mother alleges the primary judge’s oversight of her having psychological treatment since “around 2006”. On that factual point, the mother said only this in her affidavit:
88.I became unwell and was diagnosed by a psychiatrist with symptoms of Post Traumatic Stress Disorder and Depression around 2006 almost ten years after we married. The father used my health for his own excuses and then breached his duty of care to me and to our children…
…
98.The mother has attended upon a GP, a psychologist, and a counsellor, who helped me to untangle myself from the father and his control.
99.The mother attended the same medical practice and practitioner for more than ten years. The mother is actively involved in talk therapy and has attended upon a trauma psychologist for four years and upon a Domestic Violence and Sexual Assault counsellor for almost three years. The mother has continued talk therapy and garden therapy and dedicates time to mindfulness practice…
100.The mother attended upon a psychiatrist as recommended by the Family Report Writer who noted on 26 September 2023 that “At this assessment there was no evidence of a mental illness”…
(Mother’s affidavit filed 2 April 2024) (Emphasis in original)
The mother gave no other specific evidence of her having received psychological treatment from 2006 but, if she had received such treatment over all those years, then it made the single expert’s opinion evidence about her current psychological disturbance despite the receipt of such longitudinal treatment all the more poignant and worrying.
Secondly, the mother alleged the primary judge’s oversight of the father’s abduction of the children in March 2021 and his retention of them ever since, but that is not a balanced portrayal of events. The primary judge acknowledged the parties separated in March 2021 and the children have since lived with the father (at [18] and [21]). His Honour recorded how, in early 2021, hospital staff recommended it would not be safe for the child who was choked by the mother to live with her (at [23]). Thereafter, that child refused to see the mother (at [25]), a family violence order was made against her for the child’s protection (at [26]), and interim orders were made restraining the mother from contacting the children, which orders were never thereafter varied before the trial.
Thirdly, the mother alleged the primary judge’s oversight of the oral submissions she made in respect of s 60CC of the Act. While the mother’s final submissions are not specifically mentioned within the reasons for judgment, that does not mean her submissions were overlooked. No judge can refer to every piece of evidence and every submission in reasons for judgment. His Honour was acutely aware of the importance of s 60CC of the Act, referring to the section expressly in the reasons (at [41]–[44]). Significantly, the primary judge recognised the paramount need to keep the children safe from the risk of harm posed by the mother.
On the same point, the mother alleged the primary judge failed to consider the benefit the children would derive from maintaining significant relationships with both parents, which proposition is ably answered by quoting his Honour’s reasons:
51.There is no utility in discussing the remaining s 60CC considerations because even if each was overwhelmingly in favour of the mother, that would not overcome the risk of harm posed by her to the children.
Lastly, the mother alleged the primary judge failed to take into account the ICL’s failure to fully and frankly disclose documents to the expert witness, which contention is a significant exaggeration of the facts. The mother cross-examined an admission from the single expert of his ignorance of her having been treated by a general practitioner “over a long period of time”, but the issue was not usefully taken any further. The mother did not make any final submission of the ICL having failed to provide important documents to the single expert, nor that the probative value of the single expert’s evidence was diminished due to him having been deprived of such unidentified documents. In fact, contrarily, the mother sought to emphasise the importance of some aspects of the single expert’s evidence.
Ground 11 did not identify the irrelevant considerations which the primary judge allegedly wrongly took into account. Nor did the Summary of Argument.
These grounds are all rejected.
Ground 5
This ground is a bare complaint of inadequate reasons, but it is not addressed at all by the Summary of Argument and is therefore rejected.
DISPOSITION
The appeal is dismissed.
The father did not seek costs against the mother if the appeal failed.
The ICL faintly pressed an application for costs against the mother, but her counsel commendably acknowledged she failed to comply with procedural directions requiring her to file and serve a costs schedule in advance of the hearing. In any event, given the mother’s admitted penury, the provisions of the Act precluded any costs order (s 117(4)(b) of the Act). The costs application is formally dismissed.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Schonell. Associate:
Dated: 10 October 2024
0
8
2