Sheldon & Weir
[2011] FamCAFC 212
•2 November 2011
FAMILY COURT OF AUSTRALIA
| SHELDON & WEIR | [2011] FamCAFC 212 |
| FAMILY LAW – APPEAL – CHILDREN – Parenting arrangements – Relocation – Appeal against decision of a Family Court Judge – Appellant’s position that the child’s best interests would be served by her living in Australia – Assertion made by the appellant that the trial Judge had “possibly” been prejudiced against him – Asserted bias was not expressly raised in the grounds of appeal – Nothing which the appellant referred to the Court established that the trial Judge lacked appreciation of, or respect for Aboriginal culture or that the trial Judge was “possibly” prejudiced against the appellant, either in relation to his Aboriginality or otherwise – Not demonstrated that the trial Judge lacked empathy for Aboriginal cultural issues – Not established that the trial Judge erred in making findings of facts related to an Aboriginal child’s participation in, and connection to their culture from outside of the Aboriginal community – Not established that any material findings of fact made by the trial Judge were inconsistent with any findings made in the Hague Convention proceedings conducted in the Courts in Ireland – Not established that it was not reasonably open to the trial Judge to find as she did with respect to the evidence of Dr B, Ms S or the Family Consultant in relation to the risks to the child’s emotional needs if the respondent would not relocate her residence to Ireland – Not established that the findings of facts or conclusions reached in reliance on the facts were not reasonably open to the trial Judge – Appeal dismissed FAMILY LAW – APPEAL – Further evidence – None of the matters alleged by the appellant, if accepted, would establish appealable error – Further evidence application dismissed FAMILY LAW – COSTS – Where the appeal and the application for leave to adduce further evidence in the appeal have been wholly unsuccessful – Where the implications for the appellant of the trial Judge’s decision, and the conclusion that it ought not be disturbed, are far-reaching – Where in all the circumstances, there is no justification for an order of costs for the appeal or application for leave to adduce further evidence in the appeal |
| Acts Interpretation Act 1901 (Cth) s 15AA Evidence Act 1995 (Cth) ss 76(1), 79(1) Family Law Act 1975 (Cth) ss 4, 60CC, 60CC(h), 62G(2), 93A, 93A(2), 96 Federal Court Act 1976 (Cth) s 27 |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 D C Pearce and R S Geddes, Statutory Interpretation in Australia (Butterworths, 7th ed, 2011) |
| APPELLANT: | Mr Sheldon |
| RESPONDENT: | Ms Weir |
| FILE NUMBER: | NCC | 3259 | of | 2009 |
| APPEAL NUMBER: | EA | 4 | of | 2011 |
| DATE DELIVERED: | 2 November 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Loughnan JJ |
| HEARING DATE: | 26 August 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 December 2010 |
| LOWER COURT MNC: | [2010] FamCA 1138 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Anne Rees SC |
| SOLICITOR FOR THE RESPONDENT: | Burke Elphick & Mead Lawyers |
Orders
That the Appeal filed 30 June 2011 be dismissed.
That the application for leave to adduce further evidence in the appeal filed 12 August 2011 be dismissed.
That there be no order for costs of the Appeal or application for leave to adduce further evidence in the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Sheldon & Weir is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 4 of 2011
File Number: NCC 3259 of 2009
| Mr Sheldon |
Appellant
And
| Ms Weir |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed 30 June 2011 Mr Sheldon (“the appellant”) appealed against orders made in parenting proceedings between himself and Ms Weir (“the respondent”) by Ryan J on 8 December 2010.
The trial Judge’s orders permitted the respondent to relocate the residence of the child of the parties’ former relationship, R, who was born in April 2008, to the Republic of Ireland. Her Honour’s orders defined the time which the child was to spend with the appellant, both in Australia and in Ireland. The trial Judge gave the respondent sole parental responsibility.
As to the time the child is to spend with the appellant, the orders were designed to deal with a number of scenarios. As the appellant has remained living in Australia the time he will spend with the child is as follows:
· Until 1 January 2014 for specified time periods during the day in the Republic of Ireland.
· From 1 January 2014 the orders provide for overnight time to commence during the Australian December/January school holidays at dates and times agreed by the parties, but failing agreement according to the specified times, in the Republic of Ireland.
· From 1 January 2014 it was also ordered that the child spend time with the appellant in Australia during the Irish June school holidays. Provision was also made for the respondent to have time with the child every third day from 9.00 am to 2.00 pm until the child commences school and from 9.00 am to 2.00 pm once a week thereafter.
When the appellant is to spend time with the child in the Republic of Ireland the costs of travel are to be paid by the appellant. When the child is to spend time with the appellant in Australia the costs of the child’s and the respondent’s travel is to be paid by the respondent.
Orders were also made for contact by way of telephone and Skype communication.
In lieu of the trial Judge’s orders, the appellant sought that the parenting proceedings be re-heard by a judge other than the trial Judge. The appellant’s position for the purposes of these proceedings has consistently been that the child’s best interests would be served by her living in Australia. The trial judge found that, during cohabitation, it was the shared intention of the parents to relocate with the child to Ireland.
The respondent resisted the appellant’s appeal and sought to maintain the trial Judge’s orders.
On 12 August 2011, the appellant filed an application seeking leave to adduce further evidence in the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”).
The respondent resisted the appellant’s application. The respondent filed further evidence upon which she sought to rely in the event of the Court admitting the further evidence advanced by the appellant.
MATERIAL FACTS
The appellant was born in Australia in 1979 and is currently aged 32 years. The appellant’s ancestors were of Aboriginal and European heritage. Before the trial Judge the issue of the appellant’s Aboriginality was controversial. The trial Judge found that the appellant was Aboriginal and that consequently, the parties’ child was Aboriginal.
The respondent was born in Ireland in 1977 of Irish parents and will shortly be 34 years of age.
The respondent first came to Australia in the course of a working holiday in about May 2005. The respondent returned to Ireland in November 2006 but, upon re-entry to Australia in January 2007, was granted a 457 Temporary Resident Visa which enabled her to remain in Australia subject to certain conditions.
The parties met in May 2007.
By August 2007 the respondent was pregnant to the appellant.
By December 2007 the parties had resolved to move to Ireland to live and, on 16 September 2007 booked two one-way air tickets to Ireland with a scheduled departure date of 21 December 2007. On medical advice the parties did not leave for Ireland in December 2007.
On 18 December 2007, with the appellant’s support, the respondent lodged an application for migration to Australia by a Partner Visa.
In early 2008, the parties secured accommodation on the Central Coast of New South Wales.
In April 2008 the respondent was safely delivered of the parties’ child.
On 9 August 2008, the parties booked three one-way tickets to Ireland on a flight scheduled to depart on 16 December 2008. In the same month the parties obtained an Irish passport for the child. Thereafter the parties made preparation for their move to Ireland.
The parties and their child left Australia on 16 December 2008, arriving in Ireland on 17 December 2008.
By January 2009, the parties’ relationship had become volatile, and on 27 January 2009, the appellant left Ireland, arriving back in Australia on 3 February 2009.
The following month, the appellant sought that the Irish Central Authority commence proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”).
The High Court in Ireland commenced hearing the Hague Convention proceedings on 24 June 2009. The hearing continued on 2 and 3 July 2009.
The appellant was in Ireland throughout the proceedings in the High Court and, pursuant to interim orders of the High Court, spent time with the parties’ child.
On 17 July 2009, the High Court in Ireland granted the Irish Central Authority’s application and, inter alia, ordered that the child be returned to Australia.
On 21 July 2009, the High Court in Ireland, pending determination of parenting proceedings in Australia, made orders that the custody of the parties’ child remain with the respondent, and the appellant have contact with the child as defined by the High Court.
On 20 August 2009, the respondent appealed against the orders of the High Court in Ireland pursuant to the Hague Convention.
The appeal was heard on 26 November 2009.
On 27 November 2009 the Supreme Court of Ireland dismissed the respondent’s appeal and ordered the return of the child to Australia on 27 December 2009. On 22 December 2009 the effect of the orders was corrected to state that in Australia, the child would be with the appellant from 29 December 2009 until 8 January 2010.
The appellant and the child arrived in Australia on 29 December 2009. The respondent also arrived on that day. By that time there were already proceedings afoot in Australia, and interim orders had been made on an application by the appellant, the thrust of which was that, upon returning to Australia, and upon the conditions referred to in the order, the child would reside with the respondent.
Thereafter, the child lived with the respondent but spent time with the appellant on the basis defined from time-to-time by a series of Court orders.
THE GROUNDS OF APPEAL
The appellant represented himself on the hearing of his appeal and application for leave to adduce further evidence in the appeal.
The appellant did not include a transcript of the trial before Ryan J in his Appeal Books.
On 9 May 2011, in the context of an application which, inter alia, involved the re-instatement of the appellant’s appeal, Bryant CJ recorded:
17.There are other matters. The provision of transcript or not is not necessarily the end of the matter. If it were the case that Legal Aid is refused and the father finds himself in a position where he is unable to pay for transcript, whilst it might be difficult, there is nothing to prevent him with continuing on with the appeal with some of the transcript or even without the transcript. It has happened in other matters and it is not of itself an impediment to proceeding with the appeal. In addition, the father would well and truly by now be on notice that there is an expectation that his matter will come to an end at some stage and, that it may be unlikely that any further indulgence would be afforded him if he does not comply with orders that were made on this occasion.
In the Respondent’s Summary of Argument filed 13 July 2011, Senior Counsel for the respondent submitted:
1.This appeal proceeds, on the application of the Appellant, in the absence of a transcript of the oral evidence. Therefore the material available to the Court in determining the appeal is the Judgment of the learned trial Judge, the affidavit material, the experts’ reports and such material as was tendered before Her Honour. It is impossible to determine, in the absence of a transcript, what material was subject to challenge.
At the commencement of the hearing of his appeal, the Court explained to the appellant, and he appeared to accept, that the absence of the transcript may have prevented him from successfully agitating some of his complaints, and made successful agitation of a number of them problematic.
Although there is a substantial overlap between what emerged at the hearing of the appeal as the appellant’s major complaint (Ground 1) and the primary thrust of the further evidence sought to be adduced by the appellant, we shall first consider the appellant’s Grounds of Appeal and then, if it be necessary to do so, consider the further evidence sought to be adduced by him in the appeal.
Asserted bias of the trial Judge
Before proceeding to deal with the Grounds of the Appeal articulated in the appellant’s Notice of Appeal, it is convenient to deal with the assertion made by the appellant in the course of his oral submissions that the trial Judge had “possibly” been prejudiced against him as a result of a “lack of appreciation of Aboriginal culture”. The appellant also asserted in this context that “the layperson could not say, on consideration of the Judgment that a bias has not been displayed in this matter”.
In support of this complaint, the appellant referred to questions asked by the trial Judge on 15 March 2010, and recorded in an extract of transcript attached to an affidavit sworn by the respondent on 18 September 2011, in opposition to the further evidence sought to be adduced by the appellant. In the passages relied upon by the appellant, the trial Judge asked:
“Does [Mr Sheldon] have as part of his DNA I suppose a link to his
Australian Indigenous origins?”
It having been conceded by Counsel for the respondent that the appellant did, her Honour asked:
“I mean, it is plain that [Mr Sheldon] is notably fair, so
presumably he has DNA connection into non-indigenous origins
as well?”
“Yes”.
The appellant also asserted that the trial Judge’s interest in photographs of the appellant’s grandmother, which became Exhibit E12, which were not before this Court, was in order to “establish the possibility of a visual confirmation of Aboriginality through the appearance of the… grandmother and her siblings”. The appellant asserted that this, and other questions asked by the trial Judge with respect to the appearance of his relatives, indicated that the trial Judge had “sought to establish someone’s cultural identity by the colour of their skin”, which, he said, “shows at least a lack of empathy for all of the challenges Aboriginal people face in identifying with Aboriginal culture, in the history of dispossession based on the colour of your skin.” The appellant asserted that the trial Judge had also thereby demonstrated “a lack of appreciation and empathy… in relation to Aboriginal cultural issues”.
This complaint was not expressly raised by the appellant in his Grounds of Appeal, nor was it articulated in his comprehensive written summary of argument. The terms in which the appellant agitated the issue before us, and our desire not to leave the serious complaints he made unanswered, impel us to engage with the appellant’s submissions.
The issue of the respondent’s Aboriginality was contested by the respondent before the trial Judge. As her Honour’s careful and very detailed consideration of it confirms, the issue was not simple or straightforward. It is not in doubt that the trial Judge found that the appellant was an Aboriginal man, and that the parties’ child was accordingly an Aboriginal child. Her Honour’s reasons for judgment are replete with findings and observations which reveal understanding of, and respect and empathy for Aboriginal people in general, and the appellant in particular. Paragraph 551 of her Honour’s reasons exemplified the recurrent theme of her judgment, and reads:
551.…The father spoke eloquently about how, commencing in his late teens, he developed “a strong sense of my Aboriginal identity and an intimate knowledge of our protocols, respect, and history.” In addition to academic study he has “developed my cultural understanding of my own identity and world view by actively identifying with and engaging in the Aboriginal community.” He has helped other Aboriginal people “along their own journey of self discovery and personal awareness.” Thus, I accept that beyond his family, the father is engaged in Aboriginal life and is part of an Aboriginal community to whom he is able to connect the child. The father’s ties to his Aboriginal culture and community are strong and, while the child is in his care, he will include her in this life. The strength of the father’s Aboriginal identity shows that even if the child’s involvement in her Aboriginal heritage does not immediately commence or occur with the intensity the father seeks, it is possible to dovetail her rights to enjoy her Aboriginal heritage with other important aspects of her welfare.
Nothing to which the appellant has referred this Court establishes that the trial Judge lacked appreciation of, or respect for Aboriginal culture. Nor does anything to which we have been referred demonstrate that the trial Judge was “possibly” prejudiced against the appellant, either in relation to his Aboriginality or otherwise. Nor has it been demonstrated that her Honour lacked empathy for Aboriginal cultural issues.
As a reading of her Reasons for Judgment reveals, the trial Judge engaged in very considerable detail with the issue of Aboriginality in the context of “the father’s circumstances” and in the context of s 60CC of the Act. We have not been referred to any inaccuracy or deficiency in her Honour’s consideration of the issue.
In the course of so doing, the trial Judge referred extensively to the evidence before her, to recent relevant decisions of the Full Court in relation to Aboriginality, and to academic writings by appropriately qualified persons in relation to the issue.
Her Honour made a number of findings throughout her Judgment which leave no doubt that she accepted the importance of the child’s Aboriginality and opportunities available to the child in Australia which would be “lost” if her residence was relocated to Ireland. The trial Judge’s acceptance of the force of the appellant’s contentions in relation to the child’s Aboriginal culture and identity was encapsulated in paragraph 517 of her reasons, which reads:
517.I agree with the father these are all strategies, which would assist the child to take pride in her Aboriginal heritage and form her own special identity. These are opportunities available to the child in Australia which would be lost if the mother’s relocation application were granted. This is an important advantage, which weighs strongly in favour of the father’s approach against relocation.
Her Honour also accepted that any steps which the appellant would or could take were the child residing in Ireland would be “insufficient” for the child to “participate to the full extent in her Aboriginal heritage” [par 523].
It is to be remembered that the trial Judge’s Reasons were written after the completion of the trial. Necessarily, in relation to disputed issues which required determination, the reasons, in places, conveyed criticisms. That does not establish, or imply, a lack of impartiality during the trial of the proceedings.
Nothing to which we have been referred establishes that this complaint has substance. Her Honour’s reasons for judgment confirm that she approached issues of Aboriginal culture and identity with impartiality, sensitivity and respect.
Ground 1
Ground 1 of the appellant’s Amended Notice of Appeal provided:
The learned trial Judge:
1.Erred in finding related to an Aboriginal child’s participation in, and connection to their culture from outside of the Aboriginal community.
In his oral submissions in support of this challenge, the appellant said:
If her Honour had have said, “The correct decision, the correct information about Aboriginal culture is that an Aboriginal child cannot participate and actively engage with Aboriginal culture from outside the community but I still make the determination that this child’s best interest is to go to Ireland,” then she made the correct finding of fact. But she didn’t make that finding; she made the finding of fact that an Aboriginal child can participate and fully engage with Aboriginal culture from outside of the Aboriginal community, in Ireland. And so – that’s the distinction that I draw for this Court.
The concession thus made by the appellant reinforces the impression otherwise gained from his written submissions that the issue which permeated his various complaints was that the trial Judge erred in the circumstances at trial, or in the light of the appellant’s further evidence, in finding that an Aboriginal child can “participate and actively engage with Aboriginal culture from outside the community.”
As is apparent from his written Summary of Argument, in addressing Ground 1 the appellant agitated a number of not necessarily related complaints. We will deal with those by reference to the subject matter of the complaints the first of which involves the trial Judge’s refusal of the appellant’s application for an adjournment “to allow for the procurement of the independent Aboriginal expert”. Although nothing turns on it for present purposes, we have not been referred to any ground of appeal in relation to the trial judge’s refusal of any adjournment application on 5 July 2010.
In support of this complaint, the appellant submitted:
In the Judgment Her Honour discusses her decision to disallow an application made by me for the adjournment of the proceedings to allow for the procurement of the Independent Aboriginal expert. Her Honour describes the opportunities I had to address the difficulties that were faced in finding a suitable independent expert in the lead up to the final hearing, and in essence, determined that hardship faced by the respondent if an adjournment was granted outweighed the benefit to [R]’s interest in having Independent Aboriginal expert evidence available in the future. Her Honour pointed out that there was no clear time line where the evidence would be ready. I say Her Honour erred in this view/determination. [R’s] best interests demand, as an Aboriginal child for her rights to be maintained. The provisions under the Act should not be set aside when the issue of the rights of an Aboriginal child is centrally important in this matter as “cultural upbringing” is a defined “major long-term issue” in the initial procedural hearing at the first day.
The appellant further submitted that by “not allowing the evidence of the independent expert, her Honour has not allowed herself to be informed of crucial information that goes to determining the child’s best interests”.
Whilst he contended that an Aboriginal child could not participate “in their culture from outside of the Aboriginal community” and that it was only “through interaction that the culture is learned and understood, let alone participated in”, the appellant fairly conceded:
If Her Honour had of had the evidence, still on balance of all of the issues, may have allowed the relocation. That is, that Aboriginal culture is only one of several core determinants or factors in these cases. Other factors still may have been more central in determining this child’s best interests. That being considered, I say it is impossible to know that Her Honour may or may not have decided the weight of the evidence had the full evidence had of been considered. What risks to the child might the Independent Expert have identified? What weight would be given to this issue over others? I do not suggest that the Full Court examines these issues. The issue here is could Her Honour make the judgment that meets the best interests of this child by not considering Independent Expert evidence. Can Her Honour come to the determination that this child’s rights, or any Aboriginal child’s rights, to participate in their culture be maintained from outside of the Aboriginal community.
The submissions in support of this ground are also relevant to the appellant’s application to adduce further evidence. As will be seen, the Court’s conclusion with respect to the further evidence of Mr Stephen Ralph, which the appellant sought to adduce pursuant to s 93A of the Act, provides further support for the conclusion we have reached with respect to this aspect of Ground 1.
Complaints of this kind involve a measure of speculation as to what the evidence adduced following the adjournment might have established. In this instance however, the further evidence proposed by the father, that of Mr Ralph, is available to us.
Although in the circumstances we have outlined, so doing may be somewhat artificial, in fairness to the appellant, we shall first determine this complaint without reference to the further evidence. To do so, it is necessary to have regard to the trial Judge’s reasons for refusing the appellant an adjournment for the purpose he identified in his written submissions. If neither this nor any other challenge advanced by the appellant is established, the fate of the appellant’s further evidence application will determine the fate of his appeal.
We have earlier referred to the extract of the transcript of the proceedings before the trial Judge on 15 March 2010 from which it is readily apparent that the trial Judge was aware that the Aboriginality of the child the subject of the parenting proceedings before her was likely to assume considerable significance in the determination of those proceedings.
The extensive directions made by the trial Judge on 15 March 2010 included an order for the preparation of a report pursuant to s 62G(2) of the Act. Such report was to “investigate and report upon” a number of matters including, inter alia the “background of the child and her connection with her Gaelic including her Roman Catholic background and Aboriginal background” [Order 3(f)].
Amongst the witnesses who the appellant indicated that he intended to call in his case on 15 March 2010 was “[a] person from the Aboriginal community to advise the Court on issues of Aboriginal culture, kinship and heritage” [par 184].
Her Honour then recorded, uncontroversially:
186.In accordance with order 7 made 15 March 2010 the Docket Registrar contacted the father’s solicitor on 22 March 2010. He recommended [an academic] at Macquarie University as a person who may be a possible expert in relation to the [J Aboriginal] people and indigenous issues. The father attempted to contact [the academic] but discovered she had left the university. By order 5 made the same day, the parties had liberty to apply on five days notice. Thus, if there were difficulties in relation to compliance with directions or any other matter that may affect the hearing, provision had been made for these matters to be brought to the Court’s attention and, where appropriate, further or remedial directions made. This included difficulty accessing an expert. Although in relation to a matter relied upon in the father’s case this difficulty arose, he did not relist the matter nor on any of the subsequent occasions the matter was listed inform the Court.
Her Honour also noted:
188.The trial directions required the parties to file and serve affidavits by 31 May 2010. Other than her own affidavit, the mother complied with this direction. The mother’s affidavit was filed one day late. The father did not file any affidavits by the due date.
189.The proceedings came before the Docket Registrar on 31 May 2010. On that occasion the father did not seek an extension of time within which to file his affidavits, further directions in relation to expert evidence, or leave to add to his list of witnesses.
190.The proceedings came before me on 3 June 2010, on which occasion the father’s disqualification application was dismissed. There was no request by him for an extension of time within which to file his affidavits, directions in relation to expert evidence, or leave to add to the list of witnesses.
As is not in doubt, the trial Judge’s dismissal of the appellant’s disqualification application did not give rise to an appeal. Save to the extent we have earlier indicated, no part of the present appeal involves any matter which, expressly or impliedly asserts that the trial Judge’s discretion miscarried by reason of actual or apprehended bias or, prior to the conclusion of the proceedings, a reasonable apprehension of a lack of impartiality.
On 8 June 2010, the trial Judge made further directions to progress the matter to trial, including an order extending the time for filing of affidavits to 11 June 2010.
Her Honour recorded, again uncontroversially:
192.The effect of order 1 made 8 June 2010 was to extend the time within which the father was to file and serve his affidavits to 11 June 2010. No directions were sought by the father in relation to expert evidence, or to add to his list of witnesses.
193.The proceedings came before the Docket Registrar on 9 June 2010 where both parties were represented. No directions were sought by the father in relation to expert evidence, an extension of time within which to file affidavits or to expand his list of witnesses.
194.The father did not comply with the extended trial directions to file affidavits by 11 June 2010.
The matter was again before the trial Judge on 15 June 2010, in relation to matters which are not relevant for present purposes but, as the trial Judge recorded, on that date there was no application by or on behalf of the appellant to “extend the time within which he filed his affidavits, directions in relation to expert evidence, or to expand his list of witnesses”.
On 18 June 2010 a Registrar extended the time within which the appellant was to file his trial affidavit to 25 June 2010, with which order the appellant complied. On that occasion the appellant did not “seek directions in relation to expert evidence, nor to expand his list of witnesses”.
The s 62G Report which the trial Judge had ordered on 15 March 2010 was released to the parties on 21 June 2010.
When the trial commenced, on 5 July 2010, Counsel for the appellant applied for an adjournment. The trial Judge refused that application. In her reasons for judgment after the conclusion of the trial, the trial Judge recorded in that regard:
201.At the commencement of the hearing counsel for the father applied for an adjournment. This was based upon the absence of expert evidence in relation to Aboriginal culture, including kinship, heritage and child rearing practices. Directions were made in relation to this issue on the first hearing day. It will be recalled, the Docket Registrar provided a name of an appropriate person, who unfortunately, could not be located. In March 2010, the father approached Professor John Maynard who is Head of Studies at the Wollotuka School of Aboriginal Studies at the University of Newcastle. Professor Maynard told the father he would be away in July 2010 but would assist if the dates worked out. The father’s solicitor spoke with Professor Maynard who confirmed he was unavailable in July 2010. Professor Neittheim, another eminently qualified person, did not respond to the messages left for him. The father spoke with the CEO of the [Aboriginal] Cooperative who advised a number of elders would be available but none with academic qualifications. Those enquires were not pursued by the father. All of these enquiries were made in March-May 2010. Nothing more was done until the week prior to the hearing when the father’s solicitor tried to contact Professor Maynard. He was on sabbatical until September 2010 and could not be contacted.
202.Based upon the conversation with Professor Maynard in March 2010, it was submitted he was willing to become involved. The father said the hearing should be adjourned until after Professor Maynard returned. If an adjournment was granted, the next seven hearing days were in late 2010. The other alternative was to dislocate another case already listed for hearing. This, the Court was loathe to do again. There was no information about how long Professor Maynard might need to complete his task. Thus, allocating hearing dates before this information was known was fraught with the risk new 2010 dates would not suit. The risk of a further adjournment thus, could not be discounted.
None of the matters there recorded by the trial Judge has been asserted to have been erroneously recorded by her.
After traversing the submissions made on behalf of the respondent in opposition to the appellant’s application for an adjournment [pars 203 and 204], the trial Judge said:
205.Counsel for the father submitted Hort & Verran (2009) FLC 93-418 is authority for the proposition that the Court must receive anthropological or expert evidence in relation to Aboriginal culture in cases where the subject child is Aboriginal and thus was obliged to grant the adjournment. I did not accept the submission. In Hort & Verran the decision at trial was made without anthropological or academic evidence. In that case, the Full Court agreed in some cases evidence of that type may be of assistance, but said: “…it is now generally accepted in Australia that Aboriginal peoples can speak for themselves particularly in relation to their own culture and traditions”. The point being, that just as the mother and her parents were able to speak about Irish culture so could the father and members of his family, for example, his grandmother give evidence about Aboriginal culture.
In our view, the trial Judge correctly expressed the law in relation to the topic with which Hort & Verran (2009) FLC 93-418, was concerned.
Her Honour continued:
206.Although Professor Maynard was probably still willing to give expert evidence, this would not become available until sometime during September 2010 at the earliest. Precisely when it would be available was unknown. Almost certainly, an adjourned hearing would not proceed this year. In these circumstances, the prejudice to the mother was manifest. The father provided no explanation about why he failed to bring this matter to the Court’s attention sooner or why no steps were taken to pursue other avenues of enquiry after May 2010. Nor, for his failure to comply with orders and directions. An Independent Children’s Lawyer often attends to collation of expert evidence. However, it was agreed an Independent Children’s Lawyer was unnecessary. This was because amongst other reasons, the Court could not be certain an Independent Children’s Lawyer would be appointed, delay and the child’s age, both parties were represented by solicitors who practice extensively in this jurisdiction and, in relation to the father’s lawyers, in the role of Independent Children’s Lawyer. As to the later, the point being they have access to the type of experts and avenues generally known to Independent Children’s Lawyers. Thus having agreed an Independent Children’s Lawyer was unnecessary, the father could not and did not complain his lawyers needed to attend to this task. Finally, in circumstances where the child had not and, neither party proposed she would be raised in accordance with Aboriginal child-rearing practices the father’s adjournment application was refused. I later admitted a range of academic writing which went to these issues. If Professor Maynard returned from sabbatical, there was no application from the father to re-open for the purpose of admission of further evidence from him on this topic.
As is readily apparent from a number of paragraphs of the trial Judge’s Reasons, she did have regard to a number of academic writings tendered on behalf of the appellant. It has not been suggested that the trial Judge was incorrect in recording that it had been agreed that the appointment of an Independent Children’s Lawyer (“ICL”) was “unnecessary”.
As is not in doubt, the trial of the proceedings before her Honour concluded on 13 July 2010. Her Honour delivered her Judgment on 8 December 2010. It was, as her Honour then observed, always open to the appellant, prior to the delivery of judgment, to apply to re-open the case and adduce evidence of the kind which he sought the adjournment of the trial to obtain and adduce (See Cipars & Cipars (1990) FLC 92-122).
With respect to the appellant, as the trial Judge’s Reasons reveal, he was accorded every reasonable opportunity to adduce expert opinion evidence from appropriately qualified persons in relation to issues of Aboriginal culture, kinship and heritage. As her Honour’s Reasons make clear, the appellant had nine months in which to seek to adduce the expert opinion evidence which he identified on the first day of the proceedings before her Honour.
The trial Judge was obliged to afford both parties natural justice. The impact of delaying the determination of the parenting proceeds on the welfare of the child was relevant to the granting or refusal of an adjournment. So was the fact that the respondent was obliged to remain within the jurisdiction with the parties’ child pending the determination of the proceedings before the trial Judge. The respondent was entitled to have the proceedings determined in a timely way. As the trial Judge’s reasons carefully and uncontroversially recorded, the appellant had every reasonable opportunity to adduce evidence of the kind he asserted that he intended to.
In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Dawson, Gaudron and McHugh JJ said (at 154):
Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
More recently, in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 the High Court reiterated the “limits” which may be imposed upon a party’s opportunity to present his or her case.
In Queensland v JL Holdings (supra), Kirby J (at 169-171) discussed the considerations which governed the discretion to extend “an indulgence”, such as an adjournment. The trial Judge thoroughly and carefully considered a number of matters which can be comfortably accommodated within the factors to which Kirby J referred. Nothing to which we have been referred establishes that the trial Judge erroneously allowed case management considerations to “supplant” the “attainment of justice”. Nor did she fail to have regard to any fact or circumstance relevant to the “extension” of the “indulgence” which the appellant sought, or have regard to any fact or circumstances extraneous to that issue.
Perhaps not surprisingly, as the appellant has not put the transcript of the trial before us, we have not been referred to any application when the evidence at trial concluded, or thereafter, seeking a further opportunity to adduce the expert opinion evidence with respect to issues of Aboriginality.
The appellant speculated, in his written and oral submissions, as to what the trial Judge may have decided, had the expert opinion evidence which he sought to adduce been before her. Albeit arising in the context of the appellant’s evidence in his s 93A application, this Court does not need to speculate about that, as it now has expert opinion evidence of the kind which the appellant asserts that he was denied the opportunity to adduce. That evidence provides further support for our conclusion that the appellant was not denied natural justice or procedural fairness by the trial Judge.
Notwithstanding the appellant’s complaints with respect to the trial Judge’s refusal to allow him an adjournment to adduce expert opinion evidence with respect to Aboriginal culture, kinship and heritage, the appellant submitted, in reliance upon the decision of this Court in Hort v Verran (2009) FLC 93-418, that the trial Judge had erroneously refused to allow him to “speak for himself” in relation to issues of Aboriginal culture and identity.
In that regard the appellant submitted:
I refer to Hort and Verran (2009) FLC 93-418. Her Honour discusses (at 205 and 505) that Aboriginal people are to speak for themselves on issues of culture. I, as an Aboriginal person who gave this evidence in the proceedings, who has lectured at the tertiary university level on Aboriginal cultural issues, provided to the court my view that Aboriginal children could not participate in Aboriginal culture from outside of the Aboriginal community. I was ‘speaking for myself’, on behalf of my culture, in the way Her Honour suggests is possible. I say Her Honour has erred in her application of the principals [sic] of Hort and Verran.
As the trial Judge accurately recorded, in Hort v Verran, the Court accepted (at par 121) that: “…it is now generally accepted in Australia that Aboriginal peoples can speak for themselves particularly in relation to their own culture and traditions”. As is not in doubt, the Court was there referring to a suitably qualified, and preferably independent person, such as an Elder. The appellant did not at any time seek to adduce evidence from an Aboriginal Elder. The appellant did not suggest that he is an Elder of the Aboriginal people. Nor did he refer us to any evidence establishing his qualifications to give evidence of the kind to which this Court referred in Hort v Verran.
The complaint also overlooks the reality that the trial Judge accepted, at numerous points in her Judgment, the importance to the child of her Aboriginal identity, culture, kinship and heritage. Her Honour clearly accepted both the importance of Aboriginal culture to the child, and the child’s knowledge of and involvement in that culture, to the appellant. Her Honour’s findings in relation to those matters was consistent with the appellant’s evidence. The trial Judge also uncontroversially relied upon extrinsic evidence which was consistent with the appellant’s evidence. What more the appellant could admissibly have said has not been identified, save the one, and crucial aspect to which we have earlier referred, in respect of which the appellant did not establish qualifications to give evidence.
To the extent that any attempt was made before her to qualify the appellant to give evidence of the kind the Court referred to in Hort v Verran, and we have not been referred to any such evidence, it has not been established that the trial Judge erred in refusing to allow the appellant’s evidence on that basis. Having regard to the extremely thorough Reasons for Judgment of the trial Judge, it is improbable that, had such an application been made, her Honour would not have referred to it, particularly as Hort v Verran was raised, albeit for a somewhat different purpose. We need not speculate about that however.
Ancillary to this complaint was the submission of the appellant that:
I say that Her Honour errors [sic] by placing the sole onus on me as the applicant to show why the Independent Expert evidence could be included. That is, on the first day of procedural hearing where each party were asked to provide a list of witnesses for the matter, I nominated an Aboriginal person to provide evidence of [sic] my behalf in relation to these issues. At that hearing it was decided that as the “cultural upbringing” is a defined “major long-term issue” and Aboriginality was an issue of contention between the parties that I should not provide the court with a witness, that in fact there should be an Independent Aboriginal Expert appointed. The evidence was needed to determine the child’s best interests. This is clear and accepted by both parties. The respondent (also) had a responsibility to ensure that the Aboriginal expert evidence was available.
We have not been referred to any evidence which the appellant sought to adduce before the trial Judge of the kind to which the Court referred in Hort v Verran. We cannot accept that, as the appellant quite properly raised as an important issue in the proceedings, the question of the child’s Aboriginality, and the implications of her Aboriginality, that the respondent bore any obligation or onus to seek to adduce evidence of that matter. Nor can we accept that the trial Judge had an obligation of that kind beyond the orders and directions made by her.
As we have earlier recorded, the trial Judge repeatedly made directions which, if complied with, would have facilitated the appellant adducing evidence of the kind to which he referred. We have not been referred to any evidence before the trial Judge in which the appointment of “an independent Aboriginal expert” was sought by or on behalf of the appellant. Nor have we been referred to any order of the trial Judge, or anything arising during the proceedings before her, which establishes that the trial Judge expressly or impliedly ordered, or suggested, that the appellant “should not provide the Court with a witness” as he has asserted. Nor have we been referred to any evidence establishing that it was “decided” at trial that there should be an independent Aboriginal expert appointed.
Not surprisingly, given that the appellant has not provided a transcript of the trial, we have not been referred to any application on behalf of the appellant to adduce evidence from an “Aboriginal expert”.
In the course of his oral submissions, the appellant asserted:
Now, I not only say that it’s not my sole responsibility, it’s an onus on each party to ensure that that’s available because both parties identified that they were core issues. But, if it wasn’t, I say that her Honour couldn’t have proceeded without that information because it was already identified as centrally important to maintaining – if the child was determined to be an Aboriginal child – to maintaining her rights as an Aboriginal child. So it’s her Honour’s responsibility to ensure that she is informed of that information, then it’s our responsibility to collate it and present it to the court.
We cannot accept, in the circumstances of this case, that the trial Judge or the respondent bore any “onus” of the kind to which the appellant referred. As his own submissions confirms, the appellant recognised the potential importance to his case of evidence in relation to issues of Aboriginal culture and identity. As his submissions also confirms, he was better placed to adduce such evidence than the respondent. The appellant bore the onus of proving his case on the balance of probabilities. This complaint has not been made out.
Having regard to the oral submissions of the appellant, the main substantive thrust of this ground was that the trial Judge erred in finding that it was “possible” for the child to enjoy her “rights as an Aboriginal child as outlined in s 60CC(h) from outside of the Aboriginal community”.
There are in reality two parts to this complaint. The first is that, but for the matters complained of which we have earlier dealt with in the context of this ground, the trial Judge would have found that only through interaction with her community could the child learn, understand and participate in her Aboriginal culture, and preserve her Aboriginal identity. The other component of this complaint is that the trial Judge erred in finding that the child could possibly enjoy her rights as an Aboriginal child whilst living in Ireland, and only spending time in Australia with her father on the limited basis which the trial Judge’s orders provided.
The appellant complained that the trial Judge gave excessive weight to the Family Consultant’s view that the child would have a strong sense of her Aboriginal identity even if she lived in Ireland and did not return to Australia until 2014, and thereafter only returned to Australia annually. The Family Consultant’s absence of asserted expertise in Aboriginal issues, and understandable failure to examine issues of Aboriginality in her report were relied upon in support of this complaint.
Senior Counsel for the respondent submitted that the only evidence before the trial Judge was that of the Family Consultant, and relied upon the following passage from the Family Consultant’s report:
197.The Report Writer has also been instructed to comment on the cultural aspects of this case; however, as an Expert Witness in Aboriginal Culture has been appointed by the Court, this issue will not be addressed at length. Should the Court decide in favour of the father’s application, then it should be possible for the father to ensure that the child participates in cultural events and receives instruction with regards to her Aboriginal heritage during the time that the child spends with him. Should the Court decide in favour of the mother’s proposal then it would appear that the mother is willing to ensure that the child is provided with some degree of exposure to Aboriginal culture, which could be supplemented by instruction from the father (who reports that he is well qualified in this regard) during their time together, in person and by utilising other forms of communication.
It was further submitted by Senior Counsel for the respondent that, whilst the Family Consultant gave oral evidence, in the absence of the transcript the appellant could not challenge the trial Judge’s summary of that oral evidence. It was accordingly submitted that the appellant could not demonstrate that the trial Judge could not reasonably rely upon the evidence of the Family Consultant.
For reasons which she articulated in some detail, Senior Counsel for the respondent submitted that there had been other evidence upon which the trial Judge could, and did permissibly rely in support of her conclusion [par 17, page 3], which was consistent with, and supportive of, the opinion evidence of the Family Consultant.
The appellant asserted that the trial Judge’s acceptance that the respondent was willing to support the child’s cultural understanding and appreciation contributed to her erroneous finding that it was possible for the child to participate in Aboriginal kinship, culture and heritage even in the circumstances created by the orders that she made. The appellant also asserted that the evidence before the trial Judge established that the mother’s attitude to the child’s Aboriginal kinship, culture and heritage was inimical to its preservation and advancement and that the trial Judge had erred in reaching the benign conclusion she did in that regard.
Apart from submitting that the mother had asserted that “the only thing she [the child] is at risk of is being pigeon-holed as a low socio-economic Aboriginal” the appellant did not refer the Court to any evidence which was inconsistent with the trial Judge’s findings in relation to the respondent’s attitude to the child’s Aboriginal heritage. Nothing to which we have been referred establishes that her Honour’s findings in relation to the respondent’s attitudes involved “glaring improbability” (Voulis v Kozary (1975) 180 CLR 177 at 183) or were “manifestly wrong” (Dearman v Dearman (1908) 7 CLR 549 at 553). The absence of any references to the transcript of the evidence of the respondent at trial, and recognised impediments to appellate court disturbance of findings of fact made by trial Judges, and acceptance of “the trial Judge’s advantage” (see Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 at 619) prevent the appellant’s challenges to the trial Judge’s findings about the mother’s attitude to the child’s Aboriginality from succeeding.
Whatever the limitations which might have applied with respect to the Family Consultant’s evidence with respect to Aboriginality, nothing to which this Court has been referred establishes that the Family Consultant could not give expert opinion evidence as to the risks to the child of any “underlying prejudices” of the respondent, and the potential long-term harm to the child flowing from them. Assessing those risks required no cultural expertise on the part of the Family Consultant.
The appellant further submitted in this context:
When discussing the respondent’s attitudes towards Aboriginal culture Her Honour relies on her finding of fact that there was no open exchange or learning between the respondent and the appellant about Aboriginal culture, and that the respondents [sic] attitudes reflect an understandable lack of knowledge. In this Her Honour ignores evidence before the court about the Respondent attending the Aboriginal medical service personally with the child before the parties’ relationship breakdown. This evidence contradicts the findings of Her Honour.
As is readily apparent, in the absence of more than the appellant has referred the Court to, it cannot be successfully contended that the trial Judge should have made findings in the terms there asserted. It may be that her Honour could have made such findings, but the fact that other conclusions might have been open on the evidence does not mean that her Honour’s conclusion was erroneous (see Dearman v Dearman (supra), Edwards v Noble (1971) 125 CLR 296 at 304, Voulis v Kozary (supra) at 183 and Fox v Percy (2003) 214 CLR 118 at 125).
As noted earlier, the other aspect of this complaint relates to the trial Judge’s error “in determining that an Aboriginal child can participate in their culture from outside of the Aboriginal community”.
In support of that complaint, the appellant asserted:
Aboriginal culture is underpinned by participation within the community. You cannot understand Aboriginal culture from text. It is through interaction that the culture is learned and understood, let alone participated in. Her Honour discusses each parent’s plans to promote Aboriginal culture. At 514, 517 and (online resources) at 518, Her honour discusses the respondents proposals, and finds them to be acceptable in ensuring the child’s connection with Aboriginal culture and her participation in it. I say the evidence, both available in peer reviewed journals, and that [sic] would be presented by an expert, show that Aboriginal culture cannot be learned from text.
Whilst the most potentially significant aspect of the foregoing submission is necessarily dependent for its success upon the further evidence sought to be adduced by the appellant, it ought not be forgotten that, as the submission fairly recognises, the trial Judge did have regard to extrinsic material in relation to this topic. To determine this issue, it is necessary to refer in some detail to the trial Judge’s Reasons.
The trial Judge referred to the following passage from Hort & Verran (at par 106), and said “I agree that case drew together the jurisprudence in relation to the factors in relation to Aboriginal children which is to be applied in this case” [par 505]:
106.In Davis & Davis and Anor (2008) 38 Fam LR 671; [2007] FamCA 1149 Young J said:
77.In B & F [1998] FamCA 239, Moore J considered the scope and meaning of the term ‘connection’. At 29-30 her Honour stated:
As I see it, the requirement to maintain a connection to their lifestyle, culture and traditions involves an active view of the child’s need to participate in the lifestyle, culture and traditions of the community to which they belong. This need, in my opinion, goes beyond a child being simply provided with information and knowledge about their heritage but encompasses an active experience of their lifestyle, culture and traditions. This can only come from spending time with family members and community. Through participation in the everyday lifestyle of family and community the child comes to know their place within the community, to know who they are and what their obligations are and by that means gain their identity and sense of belonging. [My emphasis]
78.Stephen Ralph in his article (above), which was published prior to the 2006 amendments, favourably discusses the views of Davis and Dikstein as expressed in their article ‘It Just Doesn’t Fit’ published in 1997 in 22(2) Alt L J 64. At p 141 Ralph says:
...Davis and Dikstein believe that the terminology ‘to maintain a connection to culture’ denotes a more active view of the child’s need to participate in Aboriginal lifestyle, culture and customs. According to this view the child’s need to maintain a connection to culture goes beyond a simple need for information and knowledge to encompass an active experience of the lifestyle, culture and traditions of Aboriginal people. This experience of Aboriginal culture can only be afforded to the child if they are able to have, at the very least, direct physical contact with their Aboriginal family and kin.
79.The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, ‘explore the full extent’ of his or her culture and ‘to have the support, opportunity and encouragement necessary’ to do so. A child of Aboriginal heritage also has the right to ‘develop a positive appreciation of that culture’. The previous legislation required the court to consider ‘the need’ of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative for the court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of ‘connection’ with a stronger and more active meaning.
Her Honour then referred to the “series of articles” tendered on behalf of the appellant [par 506], one of which was written by Mr Ralph, upon whose expert opinion evidence the appellant seeks to rely pursuant to s 93A of the Act. Amongst the passages which her Honour quoted from those articles, which are significant for present purposes, was the following:
To be an Aboriginal person is to live the culture through interactions with one’s community and learn about what it is to be Aboriginal.
Her Honour then recorded:
507.The article provides a detailed expose of Aboriginal child rearing practices and points out that a child may have multiple caregivers with occasional lengthy absences from their parents and develop multiple attachments. The security of an Aboriginal child raised in this fashion, would be derived from a network of regular caregivers and acceptance in their community. In a multiple caregiver context, the opportunity is created of forming enduring relationships in the community which allows the support and maintenance of the child’s emotional health throughout their life span.
It is clear that her Honour there recognised, and accepted, the assertion of the appellant that Aboriginal culture was “lived” through “interactions” with one’s community.
Importantly for present purposes, the trial Judge then recorded:
508.The discussion in relation to bonding and attachment in this article was not relied upon by the father in order to suggest the family consultant or the Court needed to understand and assess the child’s attachment to her parents in an indigenous or multi-carer context. This is because the parties had not cared for the child using traditional Aboriginal child care practices and the approach they adopted was a clearly defined primary carer to whom the child became primarily attached. Nor is it the father’s case that a multi-carer approach, beyond the parents, would be appropriate for the future. His intention would be that he, when the child is not with the mother, would care for her. The utility of the article is particularly to aid the Court’s understanding of Aboriginal identity, values, relationships and connection to community.
Nothing to which this Court has been referred establishes that her Honour there erroneously recorded or misunderstood the case for the appellant before her.
For the reasons which the trial Judge articulated, in the passages to which we have referred, the absence of expertise with respect to Aboriginality, which the Family Consultant did not claim to have, did not have the significance which the appellant asserted.
The trial Judge further referred to Mr Ralph’s article [pars 509 and 510] and particularly:
For children who uneasily straddle the divide between Aboriginal and non-Aboriginal society the fostering of their connection to Aboriginal culture in a careful and sensitive manner may promote the development and experience of a ‘special’ individual identity. This process must be informed by the wishes of the child, where appropriate, and be sensitive to the child’s experience of racism and the effect this may have had upon their perception of themselves, their family and Aboriginal culture. With support and sensitive guidance from others, children may come to take pride in their heritage and reshape their own identify in accordance with a new perspective upon themselves, their ancestry and their place within contemporary Aboriginal society. The significance of this connection to culture in such cases rests in the child’s potential need for support from an Aboriginal parent or carer and other Aboriginal people in dealing with the complex issue of what it is to be an Aboriginal child growing up in white society. Although this might not be an immediate and vital concern in considering the needs of an infant child, in the long term it is very likely to be a crucial factor influencing the child’s passage through adolescence and later adjustment as an adult.
Her Honour’s observations are consistent with her conclusions in relation to “lost opportunities” if the child lives in Ireland. As various passages of her reasons also reveal, the trial Judge clearly recognised the subtleties of the issue as Mr Ralph explained them. An important aspect of the issue, as Mr Ralph identified, and the trial Judge accepted, was the considerable capacity of the appellant to guide and support the child’s development of her Aboriginal identity and acculturation.
Relevantly for present purposes, the trial Judge then moved from the academic materials to which she had referred to the actuality of the appellant’s circumstances. Her Honour recorded in that context:
512.The father’s connection to the [Aboriginal] people has developed largely independent of his family and separated from his indigenous culture in his formative years. Until his grandmother disclosed his Aboriginal heritage, neither he nor his family identified or had any particular interest in the Aboriginal community. His learning and embracing of his indigenous heritage has thus occurred in adulthood. Because he has little contact with his brother [T], in his immediate family, the father’s journey has been lonely and has not included the passing down to him of family oral histories. At this stage, he has little knowledge of his ancestry and is unfamiliar with much of his paternal lineage. Nonetheless, even with these barriers, the father has learned much and his journey continues to enrich his life.
513.From when he learned he is Aboriginal, he has lived in suburban Sydney, Newcastle, [coastal New South Wales], and [Queensland] and [in the Lismore area]. In this context, his exposure to Aboriginal life and practices has been to an ancient culture, which has evolved and adapted to a modern setting. The father’s academic learning and teaching I infer, has given him access to modern and traditional [Aboriginal] values and culture. Where he particularly connects with his indigenous heritage is in his work place and previously through his involvement with Land Council activities. While I accept the mother’s evidence, that while she has known the father, he has not spent time with Aboriginal people or shown an interest in that culture; this is not a measure of the extent to which he identifies as Aboriginal. Or, is able to share that aspect of the child’s heritage with her.
Nothing to which this Court has been referred establishes that her Honour erred in any respect in what she recorded in those paragraphs.
It is also relevant for present purposes that the trial Judge examined, and made positive findings with respect to the extent to which the appellant would “promote the child’s Aboriginal identity and give her the opportunity to connect with that heritage”. Her Honour recorded:
514.Some of the ways the father would promote the child’s Aboriginal identity and give her the opportunity to connect with that heritage, is through the choice of school and pre-school arrangements. He has secured a place at the [Aboriginal] Day Care on Thursdays. The father put to the mother a proposal the child attend this day care, in relation to which he said he would collect and return the child and cover the fees. The mother did not agree and in each of her parent’s care, the child attends a non-Aboriginal playgroup. She does not attend day care. There is an Aboriginal play group on Mondays which the mother could but has not taken the child. While it would have been desirable for her to do so as the playgroup she attends with the child is where she has contact with, in effect, her only friendships, I understand why she has continued the child’s attendance at that group. From the child’s perspective, the introduction of another different playgroup in addition to the two she already attends, may have been too many.
515.The father proposed the child attend an Aboriginal pre-school connected to [a local] Primary School. During the hearing, it became apparent that if the mother remains with the child in Australia, the parties would move to Sydney. In Sydney, the father would adopt a similar approach by having the child attend pre-school and school selected by reference, inter alia, to the school promoting Aboriginal learning and where other Aboriginal children attend.
516.He proposed the Court require the child remain a patient of the […] Aboriginal Medical Centre where he said she would receive “ongoing culturally appropriate health care”. The father agreed medical staff were non-Aboriginal but his point was this is another place where the child could develop a positive appreciation of her Aboriginal heritage.
Nothing there recorded has been asserted to have been erroneous.
Her Honour then recorded, in the paragraph of her reasons to which we have earlier referred:
517.I agree with the father these are all strategies, which would assist the child to take pride in her Aboriginal heritage and form her own special identity. These are opportunities available to the child in Australia which would be lost if the mother’s relocation application were granted. This is an important advantage, which weighs strongly in favour of the father’s approach against relocation.
In the light of the foregoing passages, it cannot in our view be successfully asserted that the trial Judge did not understand, or accept, the importance for the child of “living through” her Aboriginal heritage and identity. Other paragraphs to which we have earlier referred in relation to the “losses” which the child would suffer if she lived in Ireland reinforce that conclusion. Nothing which her Honour concluded in this regard has been shown to have been other than reasonably open to her on the evidence before her. Nor has anything concluded by her Honour been shown to have been inconsistent with the academic writings to which she referred. It has not been demonstrated that her Honour misunderstood the academic writings to which she referred. Nor has it been suggested that her Honour selectively, or unfairly quotes from those academic writings.
The legislation makes clear, and the trial Judge accepted, that the “important advantage” provided by the appellant’s proposals weighed strongly in favour of his resistance to the child’s relocation to Ireland. That was undoubtedly an important factor in determining the child’s best interests albeit, as Senior Counsel for the respondent submitted, the legislation did not elevate it to determinative or primary importance.
As noted earlier, we have not been referred to any cross-examination of the Family Consultant or other matter which precluded her Honour from accepting her opinion evidence that the mother was “willing to ensure that the child is provided with some degree of exposure to Aboriginal culture”.
The trial Judge clearly and carefully addressed the question of the mother’s attitude to assisting the child to “develop a positive appreciation” of her Aboriginal culture and heritage, which was a live and important issue at trial. The trial Judge did not accept at face value the mother’s assertion that she would do so, recording:
519.The family consultant accepted the mother would support the child’s Aboriginal heritage in the manner she said. This however, requires further consideration. …
Having referred to a number of aspects of the concerns the respondent raised with the Family Consultant [pars 519-20] the trial Judge found:
522.The mother knows little about Aboriginal heritage or culture and she struggled with the notion the Court may conclude the child was Aboriginal. However, she recognised her lack of appreciation of Aboriginal culture would be potentially an issue for the child and supported the notion that this was an area of the child’s development in which the father would take a lead role. As I understood her evidence, it was to the effect she saw herself being supportive and accepted there were Aboriginal values and experiences within the father’s domain and beyond her experience. I have earlier referred to my satisfaction the mother is a sensitive parent. She would not knowingly undermine the child’s Aboriginal heritage. She is capable of giving it support even although she struggles to believe it is real.
Nothing to which we have been referred establishes that the findings there recorded were not reasonably open to the trial Judge on the evidence before her. The trial Judge saw and heard the respondent being tested in cross-examination, “an advantage” this Court does not enjoy. Nothing to which we have been referred establishes that any of the trial Judge’s findings with respect to the respondent’s attitude to the children’s future engagement with her Aboriginal culture and identity was “manifestly wrong” or involving “glaring improbability” (see Dearman v Dearman (supra), Edwards v Noble (supra), Voulis v Kozary (supra) and Fox v Percy (supra)).
Notwithstanding the positive findings with respect to the respondent, the trial Judge ultimately concluded:
523.If the child lives in Ireland, it will be harder for her to participate in Aboriginal culture and lifestyle, to form kinship bonds and become part of community life. The steps, which the mother would take, would be insufficient for her to participate to the full extent in her Aboriginal heritage. However, the father’s evidence shows with his support and an appropriate level of engagement with him, she can establish a strong Aboriginal identity and appreciation of her culture. The legislation does not require the child to immediately be immersed in her Aboriginal life and contemplates this right is to be balanced with other key aspects of her needs. In other words, these factors need to ensure the totality of the child’s needs. The father will take the child along a journey of self discovery. When she is with him, she will be involved in this aspect of his life. Provided the child is able to spend time with him, in Australia at a frequency and for a duration sufficient to focus on her Aboriginal kinship bonds and community her participation in and identification with Aboriginal heritage will be strong. According to the family consultant the child will develop a strong sense of her Aboriginal identity even if she lives in Ireland and does not return to Australia until 2014 and thereafter annually. I agree. These findings warrant reasonable weight, albeit less than is given to the advantages to the child in relation to this matter if she resides in Australia.
Nothing to which we have been referred by the appellant establishes that the trial Judge erred in concluding as she did in that paragraph.
The trial Judge revisited the issue of the child’s Aboriginal culture and identity later in her Reasons, and said:
550.The father’s personal circumstances imposed many barriers for him to participate in Aboriginal life. I have accepted his evidence about his journey of personal discovery and his involvement with his indigenous heritage. As a new husband and father it was reasonable for him to be less active in Land Council activities and for him to focus on work and family life. Such steps as the father has taken since then in relation to the child and her Aboriginal heritage have been age appropriate, for example securing a place at [Aboriginal] Day Care and taking her to an Aboriginal medical centre. Notwithstanding my concerns about how it was to be implemented the father’s idea that the child attends NAIDOC day celebrations is another good example. An opportunity, which is available to the child in Australia, but not in Ireland, is that she could attend a school, which promoted Aboriginal learning and where other Aboriginal children attend. With the father’s active support this would provide a setting in which the child would develop a strong and active knowledge and connection to her Aboriginal heritage. These are advantages of Australia, which weigh strongly in favour of the father’s approach against relocation and in favour of orders, which would increase the child’s time with him.
551.If the child lives in Ireland or has considerably less time with the father than is sought by him, it will be more difficult for her to participate in Aboriginal lifestyle, culture and customs and enjoy this aspect of her heritage. While I am satisfied the mother will provide the child with information and knowledge about her heritage, this falls short of providing the child with the opportunity to explore to the full extent this aspect of her life. The father spoke eloquently about how, commencing in his late teens, he developed “a strong sense of my Aboriginal identity and an intimate knowledge of our protocols, respect, and history.” In addition to academic study he has “developed my cultural understanding of my own identity and world view by actively identifying with and engaging in the Aboriginal community.” He has helped other Aboriginal people “along their own journey of self discovery and personal awareness.” Thus, I accept that beyond his family, the father is engaged in Aboriginal life and is part of an Aboriginal community to whom he is able to connect the child. The father’s ties to his Aboriginal culture and community are strong and, while the child is in his care, he will include her in this life. The strength of the father’s Aboriginal identity shows that even if the child’s involvement in her Aboriginal heritage does not immediately commence or occur with the intensity the father seeks, it is possible to dovetail her rights to enjoy her Aboriginal heritage with other important aspects of her welfare.
552.If, for example, the child lived in Ireland and, from 2014 returned to Australia annually, from when she is about six, while she is in Australia the father would immerse her in a real way in his Aboriginal life. Because the child would have a consistent period during which this aspect of her life had particular focus, the impact upon her appreciation of her Aboriginal heritage and participation in kinship, culture and traditions would be significant. She would during these periods, provided they occurred sufficiently often, this would reinforce her exploration and positive appreciation of that culture and her sense of Aboriginal identity should be strong. The family consultant was alive to this issue and was confident the child would achieve a positive appreciation of her Aboriginal culture and Aboriginal identity even if she lived in Ireland until 2014 and only then commenced annual trips to Australia at the frequency and for the duration proposed by the mother.
553.I also agree with the family consultant the mother will support the child’s appreciation of Aboriginal culture. This matter required careful consideration, particularly in light of the mother’s limited understanding of Aboriginal history and the unfortunate remarks made to her by the father’s relatives recounted in her affidavit. Also, the view she expressed to the family consultant that the father, in effect, was opportunistic in how he claimed he was Aboriginal but, other than in the work place, did not involve himself in kinship or community life. The mother’s inclusion of the statements made to her by members of the father’s family about this issue was intended to convey, inter alia, her dismay at what was said. These are not reflective of her attitudes. Because her time in Australia has been limited and, during her life with the father he did not expose her to Aboriginal culture, heritage and community, she has virtually no understanding of his culture, including relevantly, the history of dispossession of Aboriginal people. Because the father does not speak to the mother he will not share his knowledge of Aboriginal culture with her. Thus, such knowledge the mother acquires will be through literature and not first hand.
554.Nonetheless, I assess as genuine the mother’s willingness to accept the Court’s decision about whether the child is Aboriginal. Her acceptance will be reinforced by the father taking active steps to encourage the child’s appreciation of Aboriginal culture. These steps will not be undermined by the mother and, as the child matures, I am satisfied she will have the mother’s warm support as she develops her appreciation of Aboriginal culture and her sense of identity as an Aboriginal person.
Nothing to which this Court has been referred establishes that any finding of fact there recorded was other than reasonably open to the trial Judge.
In our view, the trial Judge thoroughly and sensitively explored this important and complex issue. Her Honour’s consideration of the issue did not proceed by reference to irrelevant facts or circumstances. Nor was any relevant fact or circumstance not then taken into account. Nothing to which we have been referred establishes that it was not reasonably open to her Honour to make the findings of fact which she did in relation to the issue, or to reach the conclusions which she did in reliance upon those findings of fact.
We are not persuaded that any aspect of Ground 1 has been established.
Ground 2
Ground 2 of the Amended Notice of Appeal provided:
The learned trial Judge:
…
2.Erred in making findings of fact that are in direct opposition to the findings of facts already determined in the Hague Convention Proceedings by the High Court, and the Supreme Court of Ireland.
The following paragraph of her Honour’s reasons is also relevant to this challenge:
293.The nature of the child’s relationship with the father is, accordingly, significantly different to her relationship with the mother. Although the impact of it cannot be quantified, I accept the mother’s evidence that whilst the child was a baby, she witnessed the father’s anger directed to the mother, which caused the child to cry. Also, that the child was so distressed about spending time with the father, that even when the mother drove past [T] Police Station the child, who had come to identify that place with contact with him, became upset. While these matters have passed, the context in which this has occurred is important. Namely, strong reassurance by the mother that the child would return to her, day only stays, and being returned as expected. If, during the short to medium term, the child’s time with the father significantly increased, there is a real risk she may fear that he once again would keep her from the mother. This would be detrimental to the child’s relationships with the parties and her emotional wellbeing. These findings weigh significantly against the father’s primary proposal. With greater maturity these matters are likely to be less significant, particularly the risk that increasing the child’s time with the father may trigger significant anxiety she would not return to the mother.
Nothing to which we have been referred establishes that any of the findings of fact recorded in the various paragraphs of her reasons set out above was other than reasonably open to the trial Judge.
Senior Counsel for the respondent submitted that the relevant paragraphs of the trial Judge’s reasons with respect to the evidence of the Family Consultant were paragraphs 290 and 291 respectively, which provide:
290.The family consultant observed the child with the father. In relation to her observations she reported:
The relationship between [the child] and the father appeared to be a mutually reciprocated affectionate one. [The child] was pleased to see both her father and paternal grandmother and enjoyed showing them the toys in the childcare room. Both adults were observed to respond to [the child] in an appropriate and attentive manner. She kissed both adults when it was time for them to leave and did not show any signs of separation anxiety.
291.It has taken a lot of effort by both parties to reach this position. After the father kept the child away from the mother in late 2009/early 2010, for months the child was enormously distressed each time the mother took her to changeover. Often the child cried loudly when she saw the father and, on a number of occasions, she hit him and tried to get away. On 31 January 2010, for example, when the child saw the father approach she grabbed the mother’s leg and said, “No, no, no”. As the father took the child, she pushed away from him and arched her back in an attempt to escape. For months, the mother needed to reassure the child before every visit that she would return for their evening meal. As the months have passed, the child’s distress at being separated from the mother, as well as going to the father, has diminished and the situation now accords with the easy interaction between the child and father observed by the family consultant. This indicates that to a degree the more extreme distress caused when the father kept the child away from the mother has somewhat alleviated. In addition, that during short periods of time the father is able to focus upon the child and fill their time with activities she enjoys. In such a setting, the father has shown he is able to meet the child’s needs to such an extent that she is happy and comfortable with him.
Nothing to which the Court has been referred establishes that any of the evidence to which her Honour referred in the above paragraphs was not able to be accepted. This challenge fails.
Ground 10
Ground 10 provided:
The learned trial Judge:
…
10.Erred in finding that the mother has a reasonable likelihood to promote a relationship between the child and the father, despite the evidence to the contrary.
In support of this complaint, the appellant made a number of assertions, unsupported by any reference to the trial Judge’s reasons, or any evidence before her. To read those submissions is to appreciate why they cannot succeed.
The appellant complained that the trial Judge had “erred in her appraisal that a reasonable person could be at all confident that the mother is willing to promote, no [sic] merely accept, but promote a relationship.” The paragraph of her Honour’s reasons, to which this complaint related recorded:
394.After the parties separated, during the period the father remained in Ireland, without him needing to force the situation by order, the mother facilitated regular and age appropriate contact. Although the father wanted more and longer periods with the child, her approach was age appropriate and avoided causing the child distress at being separated from her primary carer who was still breast feeding. After the father left for Australia, without him needing to force the situation by order, the mother facilitated contact between the child and him by Skype. I do not share the father’s concern that when he sought to question the mother about the child she directed him to focus on the child and not question on her. While the father was entitled to receive from the mother the information he sought, the purpose of these calls was for him to spend time with the child and not to discuss adult matters with the mother. Nor am I concerned that, given the child’s age, the mother was unable to keep her focused on the father throughout the calls. This was a factor of age. It will improve as the child grows and is more able to concentrate and engage with others. The decision to terminate contact by Skype was made by the father. According to him, after an exchange of SMS messages on 26 February 2009 in which the mother accused him of bullying and harassment, in order to avoid further allegations he decided he would not contact the mother to set up further Skype calls with the child. In the SMS messages which took place that day, the mother said to the father: “I have been totally amenable for u to see [the child] on Skype but have told you its not a forum for you to harass me.” The mother’s SMS messages did not indicate she sought to discontinue the Skype calls, but merely for them to be calls for the father and child to spend time together, with her present to facilitate that contact and not discuss their issues. While I appreciate the tension, which existed between the parties was something to which both contributed, the father’s decision to give up on Skype was an over-reaction. I do not accept the mother would fail to facilitate Skype contact in future, nor is this indicative of her unwillingness to encourage their relationship.
We have largely dealt with this complaint in the context of an earlier challenge. Nothing to which the Court has been referred establishes that the trial Judge erred in fact in finding as she did in the paragraph complained of, or otherwise erred in that regard. Her Honour saw and heard the respondent cross-examined in relation to this issue, an advantage this Court lacks. It has not been established that the trial Judge “palpably misused” her advantage (see Earthline (supra) and Abalos (supra)).
No ground of appeal agitated by the appellant having been successful, it is necessary to consider his further evidence application.
Further Evidence
As somewhat different considerations apply to them, it is appropriate to refer to each of the individual aspects of the appellant’s application to adduce further evidence in the appeal.
The first, and potentially most significant component of the further evidence, is the “Expert Opinion upon Indigenous Cultural Issues in the matter of [Sheldon and Weir]” written by Mr Stephen Ralph [Report of Mr Ralph, 2 August 2011, annexed to the Affidavit of the appellant of 12 August 2011, Annexure A].
Senior Counsel for the respondent disputed that Mr Ralph’s evidence was capable of being adduced in the appeal pursuant to s 93A of the Act. Sensibly, there was no challenge to Mr Ralph’s expertise to give the opinion evidence which appeared in his report of 2 August 2011, upon which the appellant sought to rely. Indeed, the preliminary submission of Senior Counsel for the respondent was predicated upon Mr Ralph’s report constituting expert opinion evidence. There can be no doubt that Mr Ralph is qualified to give the expert opinion evidence he did in his report.
Before considering whether leave to rely upon the report should be granted pursuant to s 93A, it is necessary to deal with Senior Counsel for the respondent’s preliminary submission: that expert opinion evidence could not be adduced pursuant to s 93A of the Act. Senior Counsel for the respondent submitted that, by its terms, s 93A of the Act was limited to further evidence of matters of fact. Senior Counsel for the respondent was unable to refer the Court to any authority in support of that proposition. The contention was not sought to be advanced by reference to any principle of statutory interpretation.
Section 93A(2) of the Act provides:
(2) Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a) by affidavit; or
(b) by oral examination before the Family Court or a Judge; or
(c) as provided for in Division 2 of Part XI.
The Court is not persuaded that s 93A of the Act is limited in the manner in which Senior Counsel for the respondent submitted. Whilst there is a distinction between evidence of fact and expert opinion evidence, determining disputed issues in relation to them is part of the process of judicial determination of “questions of fact”. This distinction was traversed by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705 where his Honour said (at 731):
… a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions.
His Honour quoted with approval (at 729-730) Lord President Cooper in Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 (at 39-40):
… The scientific opinion evidence, if intelligible, convincing and tested, becomes a factor (and often an important factor) for consideration along with the whole other evidence in the case, but the decision is for the Judge or jury. In particular the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.
and said (at 733):
Underlying these observations is an assumption that the trier of fact must arrive at an independent assessment of the opinions and their value, and that this cannot be done unless their basis is explained.
In Dasreef Pty Ltd v Hawchar (2011) 277 ALR 611, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [31]-[32]):
Section 79(1) of the Evidence Act must be understood in its statutory context. Section 76(1) of the Evidence Act provides that “[e]vidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed”. That exclusionary rule is referred to in the Evidence Act as “the opinion rule”. Subsequent provisions of the Evidence Act provide a number of exceptions to the opinion rule. Section 79(1) provides that:
If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered “to prove the existence of a fact”. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between “opinion” and “fact” or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of “fact”. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”. That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving. (footnotes omitted)
We do not understand the expression “questions of fact” in s 93A to equate with “evidence of fact”, or some other term signifying only evidence of fact. The section refers to “further evidence upon questions of fact.” (original emphasis) Evidence of fact and expert opinion evidence may both impact upon questions of fact which require determination. The absence of any authority in support of Senior Counsel for the respondent’s contention is in our view not insignificant or inadvertent. The judgment in Dasreef (supra) provides support for our conclusion, and is difficult to reconcile with the proposition advanced by Senior Counsel for the respondent.
The ambit of s 27 of the Federal Court Act 1976 (Cth), which is in identical terms to s 93A of the Family Law Act 1975 (Cth) was considered in Wills v Australian Broadcasting Corporation (2009) 253 ALR 228. Rares J, with whom North and Emmet JJ agreed, there said:
52.The principles upon which the discretion to admit further evidence in an appeal under provisions similar to s 27 of the Act may be exercised were considered by the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; [1998] HCA 67 at [107]–[111] (CDJ). In essence, the court is at large in considering whether, under the section, fresh evidence ought be received, but a number of discretionary considerations developed by the common law may be relevant to the exercise of that discretion (although not as binding rules in the way that the common law fixed). The discretion is more ample than the common law provided. The issues involved in the appeal will point to the considerations which are, or are not, extraneous to the exercise of the power: CDJ at [108].
53. The power is remedial in nature and its principal purpose is to give a Full Court, or a judge of the court exercising the appellate powers of the court, a discretion 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.
It is difficult to reconcile the submissions of Senior Counsel for the respondent with the Federal Court’s conclusion that the Court was “at large” in considering whether further evidence ought be received. It is also in our view inconsistent with the “remedial” nature of s 93A of the Act and the principles of statutory interpretation which flow from it. The judgment of the majority in CDJ v VAJ (1998) 197 CLR 172 leaves no room for doubting that s 93A is remedial. McHugh, Gummow and Callinan JJ there said:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose 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. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
General principles of statutory interpretation provide further support for the Court’s conclusion that s 93A should not be construed in the narrow manner contended for by Senior Counsel for the respondent.
Section 15AA of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”) provides:
15AARegard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
The learned authors of D C Pearce and R S Geddes, Statutory Interpretation in Australia (Butterworths, 7th ed, 2011) suggest that:
Remedial or, as they are often called ‘beneficial’ statutes are interpreted having regard to the fact that they are intended to remedy a perceived injustice or provide a benefit to the persons to whom they apply. It is unlikely that their legislative purpose will be given effect if they are interpreted in a way that overlooks that intention (at page 289).
With respect to Senior Counsel for the respondent, we cannot accept that s 93A is constrained in the manner asserted by her. To do so would, at best, significantly curtail the operation of a remedial provision of the Act, contrary to the provisions of s 15AA of the Acts Interpretation Act, and the common law principles of statutory interpretation. Interpreted in the manner urged by Senior Counsel for the respondent, s 93A of the Act would potentially preclude appellate intervention where expert opinion evidence would establish appealable error. Senior Counsel for the respondent’s interpretation is based upon the problematic premise that evidence upon questions of fact and expert opinion evidence are mutually exclusive. As the High Court explained in Dasreef, expert opinion evidence, if admissible, may be relevant to proving, or assisting to prove a question of fact.
It is then necessary to consider whether, if accepted, the evidence of Mr Ralph would demonstrate that the trial Judge’s decision was erroneous.
Mr Ralph commenced his consideration of whether it was “possible for an Aboriginal person to participate in Aboriginal culture without interacting directly within the Aboriginal community” by saying:
This question hinges upon interpretation of the meaning of “participate”. As such it is one that is open to debate according to the perspective adopted by the observer. It is perhaps useful to consider the notion of active and passive participation in responding to this question. Each form of participation leads to a different level of cultural engagement ranging from acquiring information about culture (that may be achieved from reading or viewing material about culture) to that of actively engaging with and participating in cultural activities with other people who share that culture. The latter is a deeper form of cultural engagement and is far more likely to promote cultural identity and affiliation and allow the individual to effectively function within that particular cultural group.
Mr Ralph then referred to the Davis and Dikstein article [page 2] to which the trial Judge referred. Impliedly, Mr Ralph accepted the assertion, which he attributed to Davis and Dikstein, that “experience of Aboriginal culture can only be afforded to the child if they are able to have, at the very least, direct physical contact with their Aboriginal family and kin.” It is clear that the trial Judge referred to and accepted [para 505] the opinion of Davis and Dikstein to which Mr Ralph thus referred.
The second numbered portion of Mr Ralph’s evidence cannot be further evidence in the sense required under s 93A. It was before the trial Judge, was taken into account by her, and has not been shown to be inconsistent with any finding made by her Honour.
Under the heading “What are any positives or negatives, as you see them, in the evidence given by the mother, or the mother’s proposals about the child’s care, that relate directly to the issues of Aboriginality?”, Mr Ralph fairly conceded that:
I am unable to comment in any detail upon the mother’s evidence as I have only seen excerpts from affidavit material and have had no opportunity to discuss or explore the views of the mother and the implications of her proposals.
Mr Ralph then said:
It is my understanding that the mother proposes to teach Aboriginal culture to the child through the use of printed and online material. Further to this it is also my understanding that the child would have exposure to Aboriginal culture when spending time with the father in Australia. Whether this is sufficient to promote the child’s right to enjoy his or her Aboriginal culture (including the right to enjoy that culture with others who share that culture) is a matter that is open to interpretation. In my opinion such an approach is a very passive means of promoting a connection to Aboriginal culture and its effectiveness is largely subject to the amount and quality of time that the child is able to spend with the father and others who share the child’s Aboriginal culture.
Guardedly, Mr Ralph expressed the opinion that:
… the mother’s proposal does not necessarily (emphasis added) ensure that a significant or meaningful connection to Aboriginal culture will be maintained or that the child will have the support, opportunity and encouragement necessary to explore the full extent of Aboriginal culture and to develop a positive appreciation of Aboriginal culture.
As we have earlier recorded, the trial Judge did not find that the mother’s proposal would “necessarily” ensure the matters to which Mr Ralph referred. The trial Judge’s reasons were expressed in terms of possibility, rather than probability. As we have earlier recorded, the trial Judge juxtaposed the “possibility” of the child having a “significant or meaningful connection to Aboriginal culture” in Ireland against the clear losses which her absence from the appellant and Australia necessarily entailed. Mr Ralph’s expert opinion evidence does not render erroneous any conclusion made by the trial Judge or any finding of fact upon which it was based in relation to the likelihood of the child having a significant or meaningful connection to Aboriginal culture if she lived in Ireland.
In response to the question “What are any positives or negatives, as you see them, in the evidence given by the father, or the father’s proposals about the child’s care, that relate directly to the issues of Aboriginality?”, Mr Ralph said:
I am also unable to comment in any detail upon the father’s evidence as I have only seen excerpts from affidavit material and have had only limited opportunity to discuss his views and the implications of his proposals.
It is my understanding that the father proposes that the child lives in Australia and thereby has more opportunity to spend time with him and to participate in Aboriginal culture with others who share that culture. In my opinion this proposal is more consistent with promoting the child’s connection to Aboriginal culture and the child’s right to enjoy and to participate in Aboriginal culture with other Aboriginal people.
In the various paragraphs of her reasons for judgment to which we have referred, particularly in the context of our consideration of ground 1 of the appellant’s Amended Notice of Appeal, the trial Judge acknowledged the matters to which Mr Ralph referred. Nothing suggested by Mr Ralph is inconsistent with anything found by the trial Judge. Indeed, Mr Ralph’s further evidence provides further support for the trial Judge’s conclusions, given that her Honour clearly recognised the greater opportunities for the child to participate in Aboriginal culture that remaining in Australia offered.
The final matter addressed by Mr Ralph in his report related to “the barriers for an Aboriginal person to overcome if their understanding of their identity is withheld from them until a later age?” Mr Ralph conceded that:
It is not possible however to identify the specific effects of this upon a child due to the uniqueness of each child’s situation and the numerous other factors that influence developmental outcomes for children. In some instances the effect may be benign. In others, it may cause significant detriment to the child’s adjustment and development particularly in adolescence when issues of identity and belongingness become important issues for children to deal with.
Mr Ralph further said:
For many individuals who have been removed from Aboriginal family and who have grown up with little, if any contact, with their Aboriginal family the experience can be profoundly disturbing. For many such individuals there is an abiding sense of grief and a deep experience that a vital part of their identity has been taken away. Many people in this situation describe how difficult it can be to re-engage with other Aboriginal people and to find one’s place again in Aboriginal society and culture after a prolonged absence due to removal as a child or the denial of one’s heritage in the course of growing up.
This aspect of Mr Ralph’s evidence would not render erroneous the trial Judge’s decision. Nothing suggested by Mr Ralph is inconsistent with the trial Judge’s findings and conclusions in relation to the child commencing to come to Australia in 2014. Whilst Mr Ralph, understandably, could not suggest an age by which the child needed to be able to engage with his or her Aboriginality, his evidence cannot establish that not physically engaging with her Aboriginal heritage and culture until she is five or six years of age, depending on when she first comes to Australia, would damage, on a permanent, temporary or any other basis, the child’s experience of Aboriginal culture and identity. Moreover, there is no suggestion that the child will not be “informed” of her Aboriginality or, on the trial Judge’s undisturbed findings, “supported in maintaining a connection to Aboriginal culture by a parent or carer”.
The trial Judge’s undisturbed findings of fact, with respect to both the appellant and the respondent, do not establish that the child will need to “re-engage” or “find one’s place again in Aboriginal society and culture after a prolonged absence due to removal as a child or the denial of one’s heritage in the course of growing up”. That is partly, as the trial Judge carefully and accurately recorded, because of the child’s history to date, and the ability of the child to engage with her Aboriginal heritage in ways the trial Judge described. This evidence accordingly does not satisfy the criteria for admissibility which the High Court described in CDJ v VAJ (supra).
The handwritten statement of the respondent dated 22 July 2009 sought to be adduced by the appellant is not, as the appellant conceded [para 35], new evidence in the proceedings between the parties. Despite the length of the submissions made by the appellant in support of receiving the document pursuant to s 93A, it is unclear in what way, if accepted, the evidence demonstrates appealable error. We have earlier, in dealing with the appellant’s grounds of appeal, rejected his assertions that the trial Judge’s conclusions with respect to the safety order made in Ireland in some way vitiated the exercise of her Honour’s discretion. As we have earlier recorded, the trial Judge’s undisturbed findings of fact in relation to the issue of family violence were not reliant upon any inferences drawn by her in reliance upon the safety order made in Ireland.
The appellant also sought to rely on an affidavit by his brother, Mr W. Putting to one side the clearly inadmissible portions of Mr W’s affidavit, particularly those where he records his own impressions of the state of minds of the parties at various times, nothing asserted by him, if accepted, would demonstrate that the trial Judge erred. To the extent that the evidence related to “[g]oing to Ireland” and “[d]ays before departing to Ireland”, that was evidence which could have been agitated before the trial Judge. Nothing asserted by Mr W in relation to “Aboriginality” is inconsistent with anything found by the trial Judge, and could not render erroneous any finding by her in that regard.
The appellant also sought to rely upon an affidavit by his sister, Ms D. Nothing there deposed to would, if accepted, render erroneous the trial Judge’s conclusion.
The appellant sought to rely upon an email sent to Ms H by Mr D on 19 September 2008. In what way it is submitted that Mr D’s email, if accepted, would demonstrate that the trial Judge erred has not been articulated by the appellant. We are unable to see on what basis it could.
The reasons for judgment of the Supreme Court of Ireland in the Hague Convention proceedings were also sought to be adduced in evidence by the appellant [Affidavit of the appellant of 12 August 2011, Annexure F]. The appellant set out paragraphs of that judgment:
56.An extract from the Supreme Court Judgment quotes (as part of) the findings of fact that the High Court established included;
(vii) The evidence undoubtedly establishes that the parties’ intention was to reside outside Australia for a significant period. It was the intention that one or other or both of the parties would obtain employment in Ireland.
(viii) On balance, I find the evidence does not establish that ant any time both the parties established an intention to reside in Ireland on a long term continuous basis. Insofar as there was a formed common intention, I think it was that the parties would reside in Ireland for approximately one year.
57.The Supreme Court then, in its conclusion discussion added;
Applying the joint settled intention test, I do not consider the learned trial judge to have been wrong in his conclusions based on the findings of fact which he made following upon cross-examination and his assessment of the demeanour of each of the witnesses, and their evidence.
The crux of the appellant’s contention in this regard was that:
59... it is completely disingenuous of the Respondent to then come before the Australian Court and try, for no less than a third time, to argue that the parties intended to live in Ireland indefinitely. I say that the Respondent should not have the opportunity to manipulate the Family Law process, and that it was reasonable for me to consider the issues around the parties [sic] intention about residence to be common ground in these proceedings.
The findings in the Hague Convention proceedings were asserted to contradict a number of findings of the trial Judge. We do not believe that to be so.
As we have earlier recorded, the findings of the Irish courts were in relation to proceedings under the Hague Convention. The issues there requiring determination were different to those requiring determination in the Australian proceedings. No finding made in the Hague Convention proceedings, even if binding upon the trial Judge, constituted a barrier to her Honour making any finding of fact necessary to determine the proceedings before her in accordance with Australian law. Her Honour was obliged to make her own findings of fact in relation to the issues to which she was directed by the provisions or “legislative imperatives” (see MRR v GR (2010) 240 CLR 461) of Part VII of the Family Law Act. In any event, no finding of fact made by the trial Judge has been shown to be inconsistent with any finding made in the Irish proceedings pursuant to the Hague Convention.
The appellant sought to rely upon an affidavit sworn by him on 11 August 2011. His reasons for doing so were threefold. The first was to “address the findings by her Honour in relation to the parties’ willingness and ability to promote a relationship with the other, especially after granting the relocation, and the provisions in the Orders for each party not to denigrate the other”, in particular with respect to the history of attempts at Skype communication between the himself and the child.
The further evidence of the appellant in relation to Skype communication between himself and the child would not, if accepted, demonstrate that the trial Judge’s conclusion with respect to the respondent’s capacity to maintain the relationship between the appellant and the parties’ child was erroneous.
It may be, as was suggested to the appellant during the course of his submissions, that some further definition of Skype contact may be appropriate or necessary, but the evidence falls well short of establishing that the trial Judge’s conclusions were erroneous.
The second basis on which the appellant sought to rely on his affidavit was to “address the [m]erit of the Respondent”. The third was to “support [the appellant’s] submissions about the Respondent’s costs application in this Appeal”, namely to demonstrate the “ongoing need for [the appellant] to continue with the litigation process.” None of the matters alleged by the appellant, if accepted, would establish appealable error.
Conclusion
No ground of appeal having been established and the application for further evidence having been refused, the appellant’s appeal filed 30 June 2011 will be dismissed.
Costs
Senior Counsel for the respondent sought an order that the appellant pay her client’s costs of the appeal. Senior Counsel submitted, not unreasonably, that, if as has transpired the appellant was “wholly unsuccessful”, that would justify the Court forming the opinion that an order for costs was justified in the circumstances. Senior Counsel for the respondent informed the Court that her client’s costs were being met by her parents.
The appellant asserted that he had no assets. There is nothing before us to suggest that he does. The appellant does however have an income from part time employment which, as he conceded, may in the foreseeable future, and at his request, become an income from full time employment.
As is not in doubt, the absence of funds or assets from which to satisfy an order for costs does not preclude an order for costs being made. If an order is appropriate, in the circumstances of this case it could be made payable by instalments out of income which the appellant receives in the future. We approach the respondent’s application on the basis that, if we were otherwise of the opinion that the circumstances justified an order for costs, we would not decline to make such an order in reliance upon the appellant’s financial circumstances.
Despite the appeal and the related application having been wholly unsuccessful and that there is force in the respondent’s costs application, we are not of the opinion that, in all the circumstances, such an order would be justified.
As is not in doubt, the implications for the appellant of the trial Judge’s decision, and our conclusion that it ought not be disturbed, are far-reaching. The two most significant implications for the appellant are the limited time which he will be able to spend with the child, and the circumstances in which he will be able to do so, particularly prior to 2014.
The other implication for the appellant is financial. Without criticising the trial Judge, and noting that the appellant did not challenge the terms of the orders made by the trial Judge with respect to his spending time with the child, the cost of so doing will be a significant and ongoing financial impost for the appellant.
We are accordingly not disposed to make any order for costs of the appeal or the appellant’s application for leave to adduce further evidence in the appeal.
I certify that the preceding two hundred and seventy four (274) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 2 November.
Associate:
Date: 2.11.2011
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