SENDAK & SENDAK
[2014] FamCAFC 12
•10 February 2014
FAMILY COURT OF AUSTRALIA
| SENDAK & SENDAK | [2014] FamCAFC 12 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – where the appellant seeks to appeal final parenting orders made following the dismissal of his application for want of prosecution and leave being granted to the respondent to proceed on an undefended basis – where the appellant complains that there was a denial of procedural fairness – where the respondent opposes the appeal – where the Independent Children’s Lawyer did not appear at the hearing of the appeal because of the unavailability of legal aid but had supported the final parenting orders made – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the respondent seeks her costs in the event that the appeal is dismissed – where the appellant opposed any order for costs – where impecuniosity is no bar to an order for costs being made – where the appellant has been wholly unsuccessful – costs ordered in favour of the respondent. |
Allesch v Maunz (2000) 203 CLR 172 | |||
| APPELLANT: | Mr Sendak | ||
| RESPONDENT: | Ms Sendak |
| FILE NUMBER: | MLC | 2076 | of | 2011 |
| APPEAL NUMBER: | SOA | 84 | of | 2012 |
| DATE DELIVERED: | 10 February 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 14 June 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 29 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1320 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Devine |
| SOLICITOR FOR THE RESPONDENT: | Altavilla Vessali Lawyers |
Orders
The appeal be dismissed.
The father pay the costs of the mother of and incidental to the appeal on a party/party basis, such costs to be assessed in default of agreement
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sendak & Sendak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 84 of 2012
File Number: MLC 2076 of 2011
| Mr Sendak |
Appellant
And
| Ms Sendak |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 19 April 2013 Mr Sendak (“the father”) appeals against final parenting orders made by Federal Magistrate Hartnett (as she then was) on 29 October 2012. Ms Sendak (“the mother”) opposes the appeal.
Her Honour found that the father had failed to comply with orders for the filing of affidavit material, and thus that he had failed to prosecute his Initiating Application filed on 11 March 2011. As a result, her Honour dismissed the father’s application and gave leave to the mother to proceed with her application (contained in her Amended Response dated 19 October 2012) on an undefended basis. After the hearing her Honour discharged all previous parenting orders, ordered that the mother have sole parental responsibility for the children X born in 2006 and Y born in 2008 (“the children”), and ordered that the children live with the mother.
At the hearing before her Honour an Independent Children’s Lawyer (“ICL”) appeared, but because of the unavailability of legal aid, the ICL did not appear at the hearing of the appeal. I note though that before the Federal Magistrate the ICL supported the orders that her Honour made.
At the commencement of the hearing before this court the father indicated that he had a medical report to tender that said he was incapable of representing himself. I raised with the father the question of the appointment of a Litigation Guardian, and I stood the matter down for the father to see the duty solicitor.
When the hearing resumed the father indicated that he was told by the duty solicitor that there was no basis for the appointment of a Litigation Guardian, and he (the father) wished to proceed with the hearing of the appeal.
After receiving initial submissions from the father, I gave brief reasons for judgment and made orders dismissing his oral applications for an adjournment to allow him to file an application seeking an order that the court obtain the transcripts of the hearings before the Federal Magistrate, and for an adjournment to enable him to file an application for an extension of time to appeal orders allegedly made on 13 March 2012. I also struck out paragraph 1A(3) of the father’s grounds of appeal.
In relation to the issue of the transcripts, the father indicated at the directions hearing on 5 April 2013 that he did not intend to obtain the transcripts of the hearings before the Federal Magistrate. I pointed out the difficulties he would have in pursuing his appeal if he did not obtain the transcripts. The father then indicated he would consider his position, and I made the usual orders for the obtaining of the transcripts. However, the father did not obtain the transcripts and it was only at the hearing of the appeal that he changed his mind and he made an application for an adjournment to make an application that the court obtain the transcripts of the hearings before her Honour. I determined that given the history of the proceedings it was inappropriate for such an application to be granted, and particularly given that his application was not that he have time to obtain the transcripts, but that the court obtain them. As is well known the court is not funded to obtain transcripts for parties, and it is rare indeed for the court to do so (Forbes & Bream (2008) 222 FLR 96; Trahn v Long (No. 2) [2008] FamCAFC 194).
Relevant factual background
The father was born in 1975, and the mother was born in 1980.
The parties met in early 1999, married in 2002 and separated on
3 November 2010.
There are two children of the marriage identified in paragraph 2 above.
The children have effectively lived with the mother since the day after the separation.
The mother works full-time. The father, who ceased work in or about 2004, was unemployed at the time of the hearing before the Federal Magistrate.
In the lead up to the separation the father experienced mental health issues (depression and anxiety), and in late 2010 he threatened to commit suicide and was taken to the psychiatric unit of a hospital.
On 8 November 2010 the mother sought and obtained an interim intervention order against the father.
Since 18 December 2010, apart from one visit when he was in hospital, and a limited number of telephone communications, the father has not spent time with or communicated with the children. Importantly, he failed to attend for supervised time as ordered by the court.
On 11 March 2011 the father filed an initiating application seeking orders that the children reside with him and spend time with the mother.
On 21 April 2011 the mother filed a Response and a Notice Alleging Family Violence.
On 20 June 2011 the Federal Magistrate ordered, inter alia, that psychiatric reports be provided for each party.
On 25 August 2011 Dr K provided psychiatric reports in relation to each party.
On 13 December 2011 final intervention orders were made for a period of five years in favour of the mother and the children.
On 13 February 2012 a Family Report was provided to the court pursuant to an order earlier made for the preparation of the same.
The matter was listed for final hearing on 13 March 2012, but it was stood down at the request of the father, and ultimately there was insufficient time available for the hearing to proceed. Importantly the father had failed to comply with the orders made on 31 August 2011 for the filing of affidavit material, and thus in addition to adjourning the final hearing to a specific listing on 29 October 2012 the father was ordered to file his affidavit of evidence-in-chief, and any other affidavits on which he sought to rely at least 21 days before the hearing. The father also failed to comply with this order.
The reasons for judgment of the Federal Magistrate
Her Honour set out the relevant factual and procedural background to the proceedings, and the documents relied on by the mother and the ICL.
Her Honour then highlighted the allegations the mother made as to the physical, verbal, psychological, and emotional abuse that she suffered at the hands of the father, and the impact that his depression had on his ability to care for the children during the relationship.
Her Honour summarised and quoted from the psychiatric report of Dr K in relation to the father. Dr K’s diagnosis of the father was as follows (recorded in paragraph 24 of her Honour’s reasons for judgment):
So I would prefer to say that he demonstrates significant personality dysfunction with a great degree of obsessionality, a great degree of control and a great degree of aggression and self-centredness. And I accept that he has periods of depression and one might have to say he has a mild depressive state at this stage, partially controlled with medication.
Further, at paragraph 25 of her reasons for judgment her Honour said this:
Dr [K] was of the opinion that the father was not sensitive to nor capable of looking after the children in an emotionally satisfactory way and said at paragraph 79:-
I’m afraid I simply do not see him as capable of looking after the children, unless there was somebody else there to support him and to soften his approach to those children.
And then at paragraph 27 of her reasons for judgment her Honour concluded as follows:
Finally, Dr [K] noted that he had seen each of the mother and father and had read fairly extensive documentation and had prepared reports in respect of both of them. He had nothing to say from a psychiatric perspective that would be of concern to him about the mother. He noted that certainly she may have stayed in an unsatisfactory relationship too long, but he did not see her as having a psychiatric problem. The father, on the other hand, presented to him as having significant behavioural disturbance, and statements made by the mother in her affidavit he found to be very concerning about the father’s behaviour and attitudes. He could not see the father as capable of looking after the children on his own but saw no problem for the children being in the mother’s care. Dr [K] had:-
Serious concerns about this man [the father] in terms of his potential parenting.
Her Honour then turned to the Family Report and noted the recommendation of the report writer was that “the children live with their mother and that she have sole parental responsibility for their long term health and welfare, pending a further review of the father, should he participate in court orders in the future.”
Her Honour next addressed the “other evidence” before her comprising the affidavits of the maternal grandparents with whom the mother and the children were living. This evidence corroborated the mother’s allegations of violence and confirmed the strength of the relationship between the mother and the children.
Having found that the father had “engaged in significant and prolonged family violence during the relationship and that such family violence [had] been directed at the mother and occurred in the presence of the children”, her Honour determined that the presumption of equal shared parental responsibility was rebutted (s 61DA(4) of the Family Law Act 1975(Cth) (“the Act”)).
Her Honour then concluded that it was not in the best interests of the children for them to spend any time with the father. He had not availed himself of the opportunities he had had to maintain a relationship with the children, and the evidence did not “demonstrate that he has a capacity to engage in a meaningful way with the children”. Further, her Honour opined that “the children need to be protected from physical, emotional and psychological harm”; the evidence of the psychiatrist and the family report writer was “overwhelming” in this regard.
Her Honour rejected the father’s allegations against the mother and her parents (for example, of a lack of care and of abuse) and found that his reporting of them to the Department of Human Services was “inappropriate”.
Finally, her Honour found that “there is a risk of family violence and a likelihood of the children being exposed to it if they have any unsupervised time with their father”.
The grounds of appeal and orders sought
The grounds of appeal as set out in the Amended Notice of Appeal filed by the father on 19 April 2013 are as follows:
1.That the decision of the court to strike out the appellant’s initiating application and granting leave to the respondent to proceed on an undefended basis denied the applicant/appellant natural justice.
1A.The decisions of the court denying natural justice to the appellant/applicant included:
(1)the decision of the court denying the appellant the right to cross-examine witnesses;
(2)the decision of the court denying the appellant the right to make submissions on the evidence before the court;
(3)the decision of the court refusing the appellant’s application to adduce evidence from the file of the Child Protection Services.
2.That the facts available to the court, inter alia, the file of the Child Protection Services and the respondent’s previously demonstrated propensity to mendacity, render the orders unsafe and not in the best interests of the children.
3.That the submissions made by the Independent Children’s Lawyer, and representations of the Independent Children’s Lawyer as to the facts contained within the file of the Child Protection Services, and the attitude of the Child Protection Services to the appellant’s application, were inaccurate.
3A.That the court relied on supposed facts contained within the file of the Child Proctection [sic] Services, and supposed attitudes of the Child Protection Services to the appellant’s application, which were inaccurate. Additionally and in the alternative said supposed facts and attitudes were not supported by the evidence contained within the file of the Child Protection Services. Additionally and in the alternative said supposed facts and attitudes were contrary to the evidence contained within the file of the Child Protection Services.
4.That new evidence has become available since the original hearing of the matter. Such new evidence consists of a statement made by the respondent to the police, in or about December 2012, which partially contradicts the respondent’s affidavit testimony.
I note of course that Ground 1A(3) has been struck out. That was done as a result of the father informing the court that at the hearing before the Federal Magistrate he did not make an application to tender the file or even to adduce evidence from it. Thus, this was a ground of appeal that could not succeed.
I also observe that Ground 4 is not a ground of appeal at all. There is no application by the father to lead further evidence and thus there is no basis to address the claim made in this ground.
The orders sought by the father are as follows:
1.That the father have sole parental responsibility for the children
[X] born … 2006 and [Y] born … 2008 (“the children”).2. That the children live with the father.
Clearly, what the father seeks is if he is successful that this court re-exercise the discretion and make these orders.
Discussion
It seems convenient to address Grounds 1 and 1A(1) and 1A(2) together, and Grounds 2, 3 and 3A together.
Grounds 1 and 1A(1) and 1A(2)
In his written outline of case document the father protests that rather than dismiss his application for want of prosecution, it was open to the Federal Magistrate to permit the hearing to proceed on the basis of the father giving oral evidence. However, that misses the point entirely. In accordance with the Federal Magistrates Act 1999 (Cth) (as it then was), the Rules of Court made under that Act, and Division 12A of the Family Law Act 1975 (Cth), the Federal Magistrate who was responsible for the case management of this matter, including the final hearing, made orders for all evidence-in-chief to be given by way of affidavit. That was done when the matter was first listed for hearing, and it was done again on 13 March 2012 when it was listed for hearing on 29 October 2012, and the father was well aware of this.
Thus it was not open to the father to fail to comply with these orders, and instead, expect to attend the hearing and be able to pursue his application by giving oral evidence. The other party appropriately complied with the orders for the filing of affidavits, and the father should have done likewise. As a result, there was no error by the Federal Magistrate in dismissing the father’s application for want of prosecution.
The importance of case management was discussed and emphasised by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (per French CJ at 192–195 and Gummow, Hayne, Crennan, Kiefel and Bell JJ at 212-215). As Gummow, Hayne, Crennan, Kiefel and Bell JJ observed at 217:
112A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
However, notwithstanding the extensive powers of case and trial management specified in the legislation and the Rules of Court, there remains an obligation to ensure a fair trial and to afford procedural fairness to all parties to such proceedings. As Kirby J observed in Allesch v Maunz (2000) 203 CLR 172, at 184-185:
35It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
36The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
(footnotes omitted)
In this case, it has not been demonstrated that the father was denied “natural justice”.
The determination of the Federal Magistrate to strike out the father’s Initiating Application and grant leave to the mother to proceed on an undefended basis was plainly justified. The father had ample opportunity to comply with the orders for the filing of affidavits comprising his evidence-in-chief. Indeed, although he failed to comply for the purposes of the first hearing listed, he was then given a second opportunity to do so when the final hearing was adjourned and further orders were made for the filing of affidavit material.
Her Honour dealt with it in this way in her reasons for judgment (paragraph 4):
At the commencement of the hearing this morning, the father again sought the matter be stood down so that he could confer with a duty solicitor. The matter was listed as a special fixture hearing this day, and procedural fairness must be accorded to all. It is prejudicial to the mother, who is supported by the independent children’s lawyer in her application that the father’s application be dismissed, to further stand down this matter and cause perhaps its further adjournment. The father has been on notice since March this year that he is required to prosecute his application and that no further delays should occur. The father, […], acknowledges that himself in submissions made this morning by him. Counsel for the mother referred the Court to division 13.1A of the Federal Magistrates Court Rules 2001 (Cth) (‘the Rules’). The applicant is clearly in default pursuant to r.13.03A(1) in his failure to file and serve documents as required by order of the Court and in his failure to prosecute the proceedings with due diligence.
I observe that in this paragraph her Honour correctly recognised that affording natural justice is a principle applicable to both parties. The mother had complied with the orders and was entitled to have the matter determined without further delay.
Her Honour also observed in this context that the father had “also failed to attend for supervised time spent with the children (as earlier ordered by the Court on 31 August 2011) and he [had] failed to take advantage of telephone communication between himself and the children.”
I find that there is no merit in Ground 1.
Ground 1A(1) and 1A(2) are also without merit. The mother’s counsel says that following the dismissal of the father’s Initiating Application, the father chose to leave the courtroom and remained absent for the balance of the hearing. There is of course no transcript of the hearing to confirm this or otherwise, but the father did not challenge this submission. Thus, it is not open to the father to claim that he was “denied” the right to cross-examine and to make submissions.
Grounds 2, 3 and 3A
First, I note that what the father refers to as the Child Protection Services file is the file maintained by the Department of Human Services.
Secondly, I confirm that on the father’s own admission that file was not placed before her Honour.
Thirdly, there is no application by the father to adduce further evidence in this appeal, and in particular that file or any part thereof.
Fourthly, the only references in her Honour’s reasons for judgment to the Department of Human Services are in paragraphs 41 and 49. In the former, her Honour said this:
41.… [The father] frequently denigrated the mother and maternal grandparents as child abusers who ultimately provided an unsafe placement for the children. However, Dr [R’s] review of subpoenaed Department of Human Services files show the mother is a parent who is providing a safe and appropriate home for the children and had taken steps to protect the children by moving away from the father and seeking and obtaining a lengthy intervention against him. Similarly, the maternal grandparents were also reported as appropriate carers and no evidence was found by the Department of Human Services that substantiated the notification suggesting they had in the past, or were currently, abusing the children.
In the latter, her Honour said this:
42.The father’s allegations against the mother and her parents are unsupported by any of the evidence and are vexatious. His reporting of them to the Department of Human Services has been inappropriate. The father has no insight into the care of the children, the impact of his behaviour upon them, and their positive relationship with their mother and grandparents. He has no capacity to provide for their emotional and intellectual needs, a capacity which their mother has. The father’s mental health issues, as identified by Dr [K], show he has little insight into the responsibilities of parenthood. He is entirely self-obsessed.
Fifthly, there is of course no transcript to indicate what was put to her Honour by either party or the ICL as to the contents of the file from the Department. However, in the only affidavit filed by the father (when he commenced his action), he deposed that he had made a complaint to the Department because of his “concerns about the wife’s ability to mind the children”. He also expressed his belief that “they are still investigating [his] complaints”. Then, in her responding affidavit the mother said this:
23.… The father did lodge a complaint with Department of Human Services and as a result a worker contacted me on 23 February 2011. After discussions with the worker she advised me that she would be talking with her Manager and recommending that the file be closed.
This was in effect confirmed in the Report of the family report writer to which her Honour referred in paragraph 41 of her reasons for judgment.
Sixthly, in his written outline of case document the father has attempted to portray what he says the Department’s file contains. In the absence of an application to adduce further evidence, and that application being successful, it is not open to this court to have regard to this part of the father’s outline.
In these circumstances, none of these grounds of appeal have any merit.
The father is not in a position to establish that the file “render(s) the orders unsafe and not in the best interests of the children” (Ground 2). It has also not been demonstrated how any other facts “available to the court” achieve that result (Ground 2).
Without the file, and without the transcript, Grounds 3 and 3A cannot succeed. In any event, as the case developed before her Honour, she was entitled to rely on what the mother put in her affidavit and what the family report writer put in her report. I also observe that the fate of any complaints made by the father to the Child Protection Services was but one of many bases for her Honour’s decision. Indeed, that decision is plainly justified on the evidence before her Honour, and including in particular the evidence of the psychiatrist and the family report writer, apart from the issue of what might be in the Department’s file. It has not been demonstrated that her Honour was not entitled to rely on the evidence of the psychiatrist and the family report writer in reaching her decision.
Conclusion
Given there is no merit in any ground of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing I sought submissions from the parties as to the issue of costs depending on the result of the appeal.
In the event that the appeal was dismissed the mother sought an order for costs. The father opposed that application on the basis of his financial circumstances. The father receives a Newstart allowance of $607.10 per fortnight, including rental and pharmaceutical assistance. He has a motor vehicle and furniture, and he lives alone and pays rent of $250 per week. He pays no child support to the mother.
The father has been wholly unsuccessful in his appeal and thus there are circumstances that justify an order for costs being made. Clearly his financial circumstances are poor, but impecuniosity is no bar to an order for costs being made (see D & D (Costs) (No 2) (2010) FLC 93-435). The mother has been put to the expense of responding to an appeal that has been unsuccessful, and she should have an order for costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
10 February 2014.
Associate:
Date: 10 February 2014
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