STOKES & STOKES
[2012] FamCAFC 26
•22 February 2012
FAMILY COURT OF AUSTRALIA
| STOKES & STOKES | [2012] FamCAFC 26 |
| FAMILY LAW – APPEAL – Application to reinstate appeal from parenting orders – Where appeal was deemed abandoned due to the failure to file the appeal index – Where reasons for not pursuing original appeal were provided – Where the orders being appealed substantially reduced the child’s time with the father – Where the appellant claimed procedural unfairness and bias – Where the appellant claimed the trial judge misapplied the principle in Rice & Asplund – Where it was submitted the trial judge relied heavily on a family report unfavourable to the appellant – Where although the merits of the appeal are not strong, the real difficulty was the trial judge’s heavy reliance on the family report, which the father argues he was not given an opportunity to consider and rebut – Where there is a requirement for a transcript to be produced – Where the appellant had a history of non-compliance with procedural rules, directions and orders – Appeal reinstated conditional on compliance with orders to file and serve transcript – Application allowed FAMILY LAW – COSTS – There be no order as to costs |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Bemert & Swallow [2010] FamCAFC 100 Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337 Gallo & Dawson (1990) 93 ALR 479 Gronow & Gronow (1979) 144 CLR 513 House v R (1936) 55 CLR 499 Imaikop and Francis [2012] FamCAFC 17 |
| APPELLANT: | Mr Stokes |
| RESPONDENT: | Mrs Stokes |
| FILE NUMBER: | BRC | 9391 | of | 2007 |
| APPEAL NUMBER: | NA | 43 | of | 2011 |
| DATE DELIVERED: | 22 February 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 21 February 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 April 2011 |
| LOWER COURT MNC: | [2011] FamCA 326 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| COUNSEL FOR THE ICL: | Mr Cameron |
| SOLICITOR FOR THE ICL: | Sarah Cleeland Family Law |
Orders
The father’s application to reinstate appeal NA 43 of 2011 is allowed.
The father have leave to file an amended Notice of Appeal within 14 days.
On or before 1 June 2012 the appellant file and serve on the respondent and the Independent Children’s Lawyer copies of the transcript of the hearing before Bell J on 9, 10, 11 and 24 March and 1 April 2011.
The appeal will be dismissed if the appellant does not comply with order (3) of these orders.
The appellant, respondent and Independent Children’s Lawyer attend on the Appeals Registrar at a date and time nominated by her to settle the appeal index and for the making of directions in the appeal.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stokes & Stokes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 43 of 2011
File Number: BRC 9391 of 2007
| Mr Stokes |
Applicant
And
| Mrs Stokes |
Respondent
REASONS FOR JUDGMENT
Introduction
On 11 January 2012 the father filed an application to reinstate his appeal from the orders of Justice Bell made 8 April 2011. Those orders concerned parenting arrangements for the parties’ child born in January 2001.
Central to the father’s complaints is that these orders significantly reduced his time with his daughter from that ordered after a previous trial.
In the Notice of appeal originally filed on 6 May 2011 the father seeks to appeal all of those orders made by Bell J. One of the complaints of the father is mistakes in the order itself. The orders provided:
1.The child … born … January 2001 live with the mother…
2.The mother have sole parental responsibility for decisions concerning the long term care, welfare and development of the child.
Child’s time with the father
3.(a) The father spend time with the child during school term at such times as may be agreed and failing agreement not less than as follows:
(i)the last weekend in each calendar month commencing on Friday 23rd day of April 2011 and each first Friday thereafter from the conclusion of school until 4.00pm the following Sunday.
(ii)The father is to do all things reasonably necessary to ensure that if the child is not certified by a medical general practitioner as being too ill to attend school that day that the child arrives at school -
Anot late for the school day;
Bin the full uniform required by the school for that day; and
Cwith provision made for the child to obtain lunch from the school tuck shop in accordance with the school requirements.
(b)the father notifies the mother if the child is ill or if the child is going to be dropped off early.
(c) the father shall spend further time with the child of four weeks per year or limited to the number of weeks the father has recreational leave or whatever is the lesser on the basis that another adult is the adult responsible for the child’s care.
(d)The four weeks should be taken as follows:
(i)1 week in the Easter school holidays;
(ii)2 weeks in the September school holidays;
(iii)In odd years the child spend Christmas with the mother and spend the last week of the summer school holidays with the father; and
(iv)In even years the child spend Christmas with the father from 23 to 30 December.
4.That the child be at liberty to telephone either parent at all reasonable times and the parent who has the care of the child at that time will do all acts and things necessary to facilitate the child telephoning the other parent;
(a)by letter and email at all reasonable times and on special events;
(b)the father shall spend time with and communicate with the child at all such times that may be agreed upon by the parties from time to time, and failing agreement:
(c)The mother and father shall share equally the cost of the flights or transport for each parent paying each alternative ticket on an alternate basis.
5.That this order shall stand as an Authority for the child’s school/s to provide information to the father as to the progress of the child and as to any events to the father of all notices, letters, school reports, invitations to attend all functions, parent/teacher interviews and all other activities to which the parent of the child attending the school are invited from time to time.
Medical and Health
6.This order shall stand an Authority for the treating medical practitioner/s of the child (as the case may be from time to time) to provide any medical information which the father may require concerning the treatment given to the child. This Authority should be reciprocal in the event that the child attends upon a different treating medical practitioner/s when living with the father than when living with the mother.
7.The parties shall inform each other immediately (or as soon as practicable) of any hospitalisation or other medical emergency suffered by the child as soon as practicable of any illness or injury suffered by the child requiring prescribed medication.
8.Each parent shall ensure that the child is on their Medicare card if they have not already done so to help decrease any medical costs.
9.That to remove any doubt, the parties shall notify each other of any medical situations prior to any decisions being made to assist in the healthcare of the child and in payment of any expense.
10.The mother inform the father promptly of any upcoming specialist meetings regarding any proposed operations including dental and optical work.
11.That when the child is in the father’s care the father administers the child’s prescribed medication and treatment.
Contact Numbers and Addresses
12.That the parties shall immediately advise each other of their current respective landline and telephone numbers and addresses and at least seven (7) days prior written notice of any change to those details (even if the change is temporary rather than permanent) must be given.
13.That the parents communicate only by post and telephone calls.
No Derogatory Remarks
14.Neither party shall make any derogatory remarks about the other party to or in the presence of the child and the parties shall take all reasonable steps to restrain any third person (including partners) from making derogatory remarks about the other party or their partner in their presence.
15.The parents share the child’s education and medical expenses (including dental and orthodontic treatment).
16.If a parent wishes to arrange for the child a sporting or regular extra-curricular activity that parent shall inform the other parent prior to the child engaging in that sporting or regular extra-curricular activity and that both parents be at liberty to attend such sport or extra-curricular activity and any events associated with it.
Child’s Passport
17.That the mother and father each have liberty to remove the child from the Commonwealth of Australia to a Hague Convention country.
18.That any passport, including her current passport, issued to the child:
(a)be retained by the mother;
(b)the travelling parent will give the other parent not less than 4 weeks written notice where possible of their intention to travel overseas and the other parent will respond with in 7 days of receiving that notification;
(c)not less than 2 weeks prior to departure the travelling parent will provide to the other parent:
(i)a copy of the child’s and accompanying parent’s prepaid return air tickets;
(ii)a copy of the child’s final itinerary; and
(iii)a list of contact addresses, telephone number and where possible email addresses where the child will be contactable.
(d)That the PACE alert be lifted.
19.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
It is apparent that there are some obvious errors in the orders themselves, for example in paragraph 3(a)(i).
If the parties were able to agree about amendments to the orders no doubt such an order could be made by the trial judge or should he be unavailable by another judge. The father’s complaints however are much more far reaching.
The mother opposes the father’s application to reinstate the appeal. The application is serious in nature, should the father’s application be dismissed he will be unable to appeal the orders of Bell J. It also has significant ramifications for the mother and child.
History
The mother was born in Sweden and immigrated to Australia in 2000. The father was born in Australia. The parties married in June 2000, separated in September 2004 and divorced in January 2006.
As mentioned previously the parties have one child, who is now aged eleven. The child has primarily lived with the mother since her parents separated.
After the orders were made by Bell J on 8 April 2011 the father filed a notice of appeal, within time, on 6 May 2011.
The appeal was taken to be abandoned on 3 June 2011 after the father failed to file the appeal index.
On 11 November 2011 the father attempted to file a further notice of appeal. Those documents were returned without being filed by the Northern Appeals Registry on 14 November 2011. It was explained to the father, in a letter, that he was out of time to appeal and that he would have to file an application for an extension of time.
In addition, on 29 November 2011 Registrar Spink wrote to the father after it became apparent that the father wished, by filing the notice of appeal on 11 November 2011, to reinstate his appeal against the orders of Bell J made 8 April 2011. The letter commenced by reference to the conversation between the Registrar and the father which clarified the father’s intention:
…
As discussed, you have already appealed the decision of Justice Bell but it has become deemed abandoned.
If you wish to appeal the decision you could seek re-instatement.
For your assistance, I enclose an application in an appeal, affidavit and a notice of appeal.
…
Some months later, on 11 January 2012 the father filed an application to reinstate his appeal. That application was accompanied by an affidavit sworn by the father.
Relevant law
Reinstatement of an abandoned appeal
Pursuant to rule 22.44 of the Rules “[a] party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. The rules themselves do not provide any test or specify the matters to be considered in the exercise of discretion in determining whether to reinstate an appeal.
It is not necessary to restate the principles applicable to reinstatement applications in any detail other than to refer to Bemert & Swallow [2010] FamCAFC 100, commencing at paragraph 113, where the Full Court (Coleman, May & O’Ryan JJ) referred to the well known passages from Gallo & Dawson (1990) 93 ALR 479 at 480 and Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175.
In the circumstances of this case it is necessary to consider the father’s delay in bringing the application and in particular the merits of the proposed appeal. It is also necessary to consider whether or not a refusal to reinstate will cause an injustice to the father and whether there is any prejudice likely to be suffered by the mother which cannot be remedied by an order for costs. The central question is what does justice demand in this case having regard to the purpose of the Rules, the history of the matter and the possible merits of the appeal.
Reasons of the trial judge
The orders which the father seeks to appeal were made after a three day hearing. The application before his Honour was that of the mother filed 28 October 2010. The mother asked that the child live with her, that she have sole parental responsibility and that the father spend no more than one in four weekends with the child during the school term and no more than four weeks holidays with the father per year. The mother sought that the child’s time with the father be supervised by another adult.
It was explained at the commencement of his Honour’s reasons that the litigation between the parties has been extensive, commencing with a domestic violence order on 19 October 2004, which was varied on 18 April 2006. It was said by his Honour that the mother explained that there have been eight attempts to enforce the domestic violence orders, as well as an endeavour to enforce a domestic violence order.
It was said that in September 2005 the father sought an order that he have full custody of the child after the child started “exhibiting some peculiar symptoms”.
The trial judge clearly relied on the expert evidence of Ms B who had provided four previous reports and a further report received by the parties on the first day of the hearing, 9 March 2011.
The trial judge referred to a report dated 11 August 2006 of Ms B, who after psychological testing of the father said:
He is assessed as displaying personality features of introversion, dependency and narcissism, with frequent lack of insight into how his behaviour is interpreted by and impacts on others. His understanding of [the child’s] very real distress is limited to blaming the mother exclusively and he takes no responsibility for making a contribution himself.
Apparently after receipt of that report the parties reached agreement on an interim basis that the child live with the mother and spend time with the father. The school which the child was to attend was also agreed.
There was agreement in relation to the father spending supervised time with the child each week for four weeks, and for that time to be extended to the father spending time with the child from 9.00am to 5.00pm every Sunday for two months, and thereafter fortnightly from the conclusion of school on Friday to the commencement of school on Monday during school terms.
On 5 December 2006, Ms B interviewed the child and concluded she showed some difficulty in communicating with the father and had indicated that she did not want to spend any time with him. His Honour commented that this led to the parties to agree “for one of the very few occasions” that the child should have therapy with Dr H, a psychiatrist.
On 30 January 2008 final and comprehensive parenting orders were made by Federal Magistrate Wilson. These orders provided that the child live with the mother, the parents have equal shared parental responsibility and stated in general terms, the father have time with the child each alternate weekend.
Unfortunately, the dispute between the parents continued.
In February 2009 it was ordered that both parties undergo psychiatric assessment. His Honour commented that such order may have been raised “as a result of concerns expressed by Ms B in her report of 9 March 2011”, particularly where it was said:
3.2My direct experience of the parties has provided me with a consistent view over time that the mother is always appropriate in her social interact, takes a responsible and dedicated approach to parenting and provides [the child] with the stability and consistency that every child needs to foster normal development. This opinion has been supported by a recent court ordered psychiatric assessment of the mother.
3.3I am equally convinced that the father has no ability and probably less desire to behave according to any social convention, that he views those who disagree with him – whoever they may be – as idiots for no other reason than that they disagree with him and that he lacks empathy for others, including his own daughter. He has been observed by me to demonstrate disregard for [the child’s] emotional needs (perhaps not deliberately but rather because of a deficiency in his own emotional development). It was imperative in my view that [the father] be psychiatrically assessed prior to this matter going to trial. He has, however, refused to comply with the court orders in this regard. My concern is that his behaviour may reflect a Narcissistic Personality Disorder and if this is the case then the impact for [the child] of spending extended time with him could be deleterious to her general development and especially her psychological development. This is not to say she should have no time with him.
…
3.6[The child] has clearly felt humiliated as a result of the lack of organization demonstrated by her father and that dishevelled way she has been presented to school by him. She reports that her father doesn’t spend time with her even when he can and there is a body of evidence to suggest that the father is often irresponsible in the manner in which he decides where and when he will drop [the child] off – whether or not there is a responsible adult present to supervise her or even let her into the mother’s home. …
His Honour explained that Ms B was of the view that the father was narcissistic, as well as possibly suffering from spectrum autism disorder.
The mother attended on a psychiatrist and a report was made available from Dr R who found that the mother did not suffer from a mental disorder. The father refused to attend a psychiatrist and did not provide a report from a medical practitioner.
In his reasons his Honour then explained the child’s medical condition and the issues surrounding her treatment. The child is being treated for autoimmune thyroid disease (Hashimoto’s Thyroiditis) and associated alopecia. Dr P, the medical practitioner who has treated the child since 18 January 2010, expressed concern about the father, which was accepted by his Honour:
6.… [The father] shows a pattern of obstruction and objection to [the child’s] medical care. He has refused to give consent to medical procedures before and I have been informed by [the] mother and verily believe that while in [the father’s] custody, her medications are withheld.
7.[The father] has made serious allegations to me concerning the safety of Thyroxine, the medication used to treat [the child’s] condition, as a justification for his stance against [the child’s] treatment. However, I know of no reports or literature as to the toxicity of thyroxine provided that the dose is correctly maintained. … In a face to face, discussion with [the father] on the 27 January 2011, [the father] threatened that he could withhold the medication if he saw fit since he was [the child’s] father. I advised him that such action might constitute serious parental neglect. [The father] has also sent a fax to our office alleging that [the child’s] mother ... may have Munchausen’s By Proxy. This is a very serious accusation which in my view could be malicious. I have seen no evidence of Munchausen’s By Proxy. [The child’s] diagnosis is firm and has been confirmed by a professor of paediatric endocrinology. [The child’s] treatment is entirely appropriate and [the child’s] mother is fully compliant with the recommendations made by Dr B [the child’s paediatric endocrinologist].
8.I am concerned that [the child] may be at risk of neglect and potential psychological harm from [the father] if he is granted custody of [the child], because of his persistent denial of her illness, the threats to remove her from her medication, and the unfounded allegations against [the child’s] mother which may reflect an undiagnosed personality disorder.
The trial judge, in the reasons set out a bullet point list from Ms B’s report which set out the allegations made by the mother in relation to the father’s attitude to not only herself, but in particular to the child. His Honour numbered the points:
1.Not met his obligations in relation to the care and welfare of [the child];
2.Been obstructionist in regard to [the child’s] medical treatment of serious medical conditions;
3.Shown no interest and been totally uninvolved in [the child’s] schooling;
4.Been neglectful and inappropriate in his care of [the child];
5.Been insensitive to [the child’s] emotional needs;
6.Been abusive towards the mother and her family;
7.Lacked any nurturing ability;
8.Not made himself available to spend time with [the child] personally when she has been in his care;
9.Not provided appropriate accommodation or even a bed of her own for [the child] when she is in his care;
10.Not provided financially for [the child];
11.Not been supportive of normal social activities for [the child];
12.Not encouraged or at times allowed [the child] to communicate with her mother whilst in his care;
13.Meted out inappropriate discipline to [the child];
14.Not followed through with extracurricular activities that he initiated for [the child];
15.Refused to cooperate with the Court in being psychiatrically assessed;
16.Refused to attempt alternative conflict resolution with the mother;
17.Proven he is incapable of providing even basic care for [the child];
18.Needed to rely on after school care for [the child] on all school days when he collects [the child] for time with him; and
19.Not been available to care for [the child] during school holidays, instead relying on members of his family to supervise her.
The trial judge said he was “more than satisfied that each of these allegations has been proved”. His Honour continued:
34.… Insofar as 1. is concerned I can only refer to the family reports and to the evidence that I have already touched up. 2, I refer to Dr [P]. 3, I refer to the statements made by [the mother] but also to [the child’s] complaints herself. 4, I refer to [the child’s] complaints. 5, Clearly [the child] is under enormous emotional stress which he does not recognise. He has been abusive towards the mother and her family. I am quite satisfied there is no evidence of any nurturing ability on his part. I refer in particular to the complaints made by [the child]. I will be touching upon the allegations of lying at a later stage.
35.He does not make himself available and [the child] complains about this and is concerned. He has failed to provide adequate accommodation for [the child]. He does not provide financially for [the child], saying that $42.00 per week is sufficient for [the child] to be adequately maintained. He does not appear to be interested in social activities for [the child] and [the child] herself also complains about this. I am not quite satisfied that he has meted out inappropriate discipline to [the child] but his whole attitude is not good and in particular I would refer to his carrying on on the night that [the child] went with him and the paternal grandmother to dinner at a Japanese restaurant. I will be touching upon that at a later stage.
36.I need say not more but each of those allegations, as far as I am concerned, have been adequately proved on the evidence.
His Honour said:
41.It has been submitted that in fact I should cut down the time that the child spends with the father to once per month. I was almost of the view that there should be no contact with the child but two things have prevailed against that view of mine. One is Ms [B] says that notwithstanding the attitude of the father towards the child, that there is a relationship, and secondly the mother has proposed that the child do have contact with the father. I hope he hears that.
…
44.Let me make it quite clear it is the father who is removing himself from [the child’s] life by his unwarranted and, I find, totally inappropriate conduct not only towards to [the child] but to the world in general in relation to this child.
The trial judge then considered the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
46.It is trite to say that generally that there is great benefit in a child having a meaningful relationship with both of the child’s parents notwithstanding the enormous difficulties under which the mother is labouring with the father’s attitude towards her and to generally everyone else who disagrees with him. She is endeavouring to maintain such relationship but I have already touched upon the fact that Ms [B] is of that opinion and, secondly, notwithstanding my doubts as to whether it would be to the benefit of the child to have contact with her father, the mother insists that it is the child’s benefit to maintain a relationship between the child and the father. I do not believe that the child’s attitude is such that it could be said that he is encouraging a meaningful relationship between the child and the mother, and in particular I refer to the final email in which he alleges that the mother is a liar.
47.It is quite clear that there is a need to protect the child from the psychological harm which is obviously being perpetrated upon her by the father notwithstanding his denial of such conduct. I am more than satisfied on all the evidence which has been put before me that he is failing to protect her from psychological harm.
48.The child has expressed a view that she does wish to see her father but that the time be limited until a four day period of about once per month. I think that her views, albeit she is comparatively young, should be taken into consideration. I do not for one moment accept that she lies at every particular. I am of the view that her complaints about the father’s attitude toward her general wellbeing have been consistent over a period of five years and that it does not appear as though the father has changed to any great extent to advance her welfare.
49.There is a relationship between the child and the father and I believe that orders that I will make in relation to contact will continue such relationship. I am more than satisfied and need go no further than what I have said before to say that the father has not had a willingness to encourage and facilitate a close and considerate relationship between himself, the child or the other parent.
50.I have rarely met, in my 35 years on this bench, a person who exhibits such a total disregard for the interests of his own child and I have no hesitation in these circumstances of ordering that the mother have the sole parental responsibility of the child. I make it quite clear that I am aware that there is a presumption that has to be overcome. It has been overcome, if only for the matters to which I have hereinbefore referred to and in particular the views of Ms [B] and Dr [P] as to the adverse effect any either joint parental responsibility would be on the child, or otherwise.
51.I do not believe that there would be any difficulty in the contact period being shortened.
52.I do not believe that the father has shown any clear responsibility in relation to parenthood and he has no idea as to the needs required by the child.
(own emphasis)
In his Honour’s consideration of s 60CC(4) it was said:
61.I am more than satisfied once again on the material before me, not having set out every particular but the ones which concern me, that the father has failed miserably in being able to put the child first, to exercise the responsibilities for the care and maintenance and wellbeing of the child, and I refer to the exert from Ms [B’s] report to which I have already hereinbefore referred wherein she says that it is a 24 hour per day job to be a parent and he has failed in doing that.
(own emphasis)
In conclusion the trial judge said:
62.Insofar as the requirements of Rosa is concerned, I am quite satisfied that for the child’s welfare one weekend per calendar month will be significant and substantial contact for the child to have with the father and further notwithstanding, as I have said, there may some difficulties in relation to cost the contact will be reasonably practicable.
63.There is also a suggestion that the child should be allowed to travel to Sweden. She has already done so on one occasion. Amazingly, the father did allow her to do so and I am of the opinion that she be allowed to do so once again and that she be entitled to be removed from Australia for a period of five weeks with a view to journeying overseas.
64.May I say finally that the respondent father was indeed fortunate to have acting on his behalf Ms Barbour who I think has done a remarkably good job notwithstanding the difficulties under which she laboured.
65.Insofar as extended block holidays are concerned, Ms [B] is of the opinion and I agree with her that the pressure that has been exerted upon this child, that failure of the father to look after the child during such times as with him, the fact that he does tend on the child’s complaints to satisfy his own needs and not that of the child, the fact that the child is in effect hoisted off onto her relations, notwithstanding the fact she enjoys it, concerns me. I am of the view therefore that Ms [B’s] suggestion that there be an order that the father have one week in each school holiday during the year so long as his mother is present during such present and for the Christmas period that he do have contact with the child for two weeks from Boxing Day, once again on the same condition.
66.Ms Barbour for the respondent submitted that I reconsider Rice & Asplund. I have already done so and have found that Rice & Asplund does not apply.
It seems that the matter has been back before this court on many occasions since the orders of Bell J and there are pending applications.
A complicating feature of this matter is the various orders made by the judge to manage the proper hearing of the trial. As would be expected orders were made that each party file affidavits by certain dates. In the order made 19 April 2010 paragraph 17 provided:
17.That in the event that the father fails to comply with Order 3 of 28 January 2010 and to these directions made pursuant to that Order, then the father’s involvement in these proceedings be limited to the cross-examination of each witness and to making submissions at the conclusion of this matter.
On 5 August 2010 his Honour ordered:
2.The operation of the Orders dated 19 April 2010 be stayed insofar as the requirement for the parties to prepare material for a final trial.
The Independent Children’s Lawyer was unable to explain many of the details in relation to the court orders and other events leading up to the trial and reply to assertions made by the father because the Independent Children’s Lawyer has taken over the file from the previous solicitor.
It is impossible to know whether some of the assertions made by the father in relation to procedural fairness are correct or otherwise without reference to the transcript and a full appreciation of pre-trial orders.
Explanation for the delay
The affidavit of the father filed in support of the application for reinstatement does not provide an explanation for the delay; rather he provides his reasons for not pursuing his original appeal.
It is somewhat illustrative of the father’s position to set out part of his affidavit in this respect:
7.After Bell’s Orders I lodged a Notice of Appeal to get rid of the garbage. I did not proceed because:-
a)The Family Court can be biased, incompetent and destructive (ie. Bell) and ending all involvement with it was highly desirable.
b)The child had put up with almost 7 years of litigation thanks to the Court and she also needed a break from its incompetence and destruction.
c)The child lived 150m from my house at the time and I felt sure she would visit me outside Court ordered times that would mitigate the damage caused by Bell’s crap orders.
Apparently his hopes have not been fulfilled.
It must be observed in the context of considering delay that the father did originally file a notice of appeal within time. Although it was entirely due to the father failing to comply with the Rules, I would not regard this factor as decisive.
Merits of the appeal
The Notice of appeal asserts eight grounds of appeal, which in summary provide, that the trial judge erred in making both errors of fact and errors of law, was biased against the father, erred in the attachment of weight to certain evidence, and wrongly failed to find that the principle in Rice & Asplund applied.
In oral submissions it became apparent that the father pursues four main grounds of appeal. First that the trial judge was wrong in relying on the family report provided by Ms B. Second, that the trial judge denied the father procedural fairness by dismissing his application for an adjournment to prepare a response to Ms B’s report and not affording him the opportunity to lead evidence. Third, that the trial judge erred in preferring the evidence of the mother and certain other witnesses over that of the father, and fourth that the trial judge erred in his application of the principle in Rice v Asplund.
In relation to the claim of bias it is of interest to note that the father claims that he asked his solicitor during the trial to apply to the judge to excuse himself on the basis of apprehended bias but the solicitor refused to make such an application. The father said the solicitor disagreed with the father’s view and informed him she would withdraw representation if he insisted. The father did not believe it would be in his interests to continue unrepresented at the trial.
In dealing with the grounds which assert bias the father must satisfy the two step test proscribed by the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) in Ebner v Official Trustee in Bankruptcy; Cleane Pty Ltd v ANZ Banking Group Ltd (2000) 205 CLR 337. First, that there is an identification of what it is said might lead a judge to decide a case other than on its legal and factual merits, and secondly there “must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits”.
In this respect, apart from the father asserting that the judge is incompetent and negligent there is no apparent basis for the assertion of bias. The father also would need to get over the hurdle that the claim of bias was not made at trial.
The obvious difficulty for the father in succeeding in this application for reinstatement is demonstrating that in terms of what is required by well known authority, he has an arguable case to succeed on appeal.
In regard to those grounds which seek to challenge the trial judge’s discretion it may be useful to repeat here the well known passage from House v R (1936) 55 CLR 499 were at 504-5 it was said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
It may also be useful to set out the well known passage from Gronow & Gronow (1979) 144 CLR 513 where at paragraphs 519-20 it was said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
Apart from asserting that the previous orders made by the Federal Magistrate were to be preferred there is nothing in the father’s lengthy affidavit and submissions which would indicate that there was error in the reasons of such a magnitude which most likely would lead to an appeal being allowed. However, the transcript was not available for this hearing making it impossible to discern whether many of the statements made by the father about errors made by the trial judge have validity.
Possible prejudice
It is evident from the affidavit of the husband that he is aggrieved by the orders. As stated previously should the application be dismissed the father will be unable to appeal the orders.
It was submitted by the father and it is reasonable to conclude that where a parent’s contact with a child is limited to one weekend per month, as is the effect of the orders made by the trial judge, there is a limited chance for a meaningful relationship between the parent and the child.
It is also apparent that should the father’s appeal succeed it would be necessary for there to be a further trial. This could place a significant burden on the mother and also the child as she understandably would be subjected to further interviews. In oral submissions counsel for the Independent Children’s Lawyer expressed concern about the impact a further trial would have on the child, who has already been subjected to numerous interviews by experts and is now approaching her adolescent years.
In oral submissions, the mother explained she is pregnant and is experiencing some sickness in association with the pregnancy. She is due to give birth in late August this year. She submitted she does not have the financial resources to engage legal representation if the application is allowed and hence would be self-represented in the appeal. The mother also submitted that the child is presently very happy, has a good group of friends and is in need of peace and quiet in her life, especially in light of her illness.
The mother did not file any materials in response to the father’s application prior to or at the hearing. She made oral submissions on a number of matters raised by the father in his oral submissions. With respect to the father’s ground of appeal that natural justice was denied to him by orders restraining him from leading evidence, the mother submitted it was the failure of the father to file material in the two years leading up to the trial, both when he had the opportunity to and when he was expressly ordered to, which formed the basis of the trial judge’s orders restraining the father from giving further evidence at the trial.
The mother further submitted that the trial judge had given the father the opportunity to be cross examined on specific issues where adverse evidence had been presented against him, including his understanding of school drop off times and his administering of medication for the child. In relation to the dismissal of his application for an adjournment for time to respond to the family report received on the first day of trial, the mother submitted that the father had been represented and would have received sufficient assistance in responding to it.
Submissions of the Independent Children’s Lawyer
The Independent Children’s Lawyer opposes the father’s application. In written and oral submissions Mr Cameron of counsel for the Independent Children’s Lawyer opposed the application on three grounds. First that that there is no, or no satisfactory explanation for the delay and the father demonstrated in his affidavit in support of the application that in fact he deliberately chose not to prosecute the appeal. Second and most significantly that, in the language of Coleman J in Imaikop and Francis [2012] FamCAFC 17 (at para [15]), there is “absolutely nothing before this Court to indicate that, if this application is allowed and, the applicant prosecutes his appeal, appellate intervention should be enlivened”. Third it was submitted there is a need for finality to the litigation, given the child is now aged 11 years old and has lived the past eight years of her life the subject of court proceedings between the parents.
Counsel for the Independent Children’s Lawyer accepted as a fundamental proposition that removing a child from a parent’s life is a grave step, however emphasised the Independent Children’s Lawyers underlying concern that allowing the application and consequently the appeal, which if successful would lead to a re-trial, would subject the child, to her detriment, to further litigation proceedings as she enters her adolescent years.
Conclusion
In view of the circumstances of this case, with significant reservations, I am of the view that the application should be allowed.
The grounds of appeal and submissions of the father do not reveal any obvious arguable grounds of appeal other than some errors in relation to the wording of the orders amenable to being adjusted.
The real difficulty is that so much of his Honour’s reasons referred and relied on the report of Ms B provided on the first day of the trial. That his Honour would rely on the report is unsurprising. It was damning of the father. In submissions the father asserts that he was not given an opportunity to rebut the findings of Ms B. If this proves correct on a perusal of the transcript and without other explanation the father may have been denied procedural fairness.
The only other possible error is the approach taken by his Honour to what is described commonly as the Rice & Asplund principles.
To allow the father’s appeal to be reinstated has significant adverse effect on the mother. As there appears to have been non-compliance in the past and as a transcript would be essential for the father to argue the appeal, orders should be made requiring the transcript to be filed by a certain date. The order reinstating the appeal is conditional on the father obtaining the transcript providing copies to the mother and the Independent Children’s Lawyer. If those orders are not complied with by the father then the appeal will be dismissed. The father agreed that he had the capacity to comply with these orders.
Costs
At the conclusion of the hearing of the application submissions as to costs were heard.
The Independent Children’s Lawyer asked that should the application be refused the father pay the costs.
In the event that the application was allowed the Independent Children’s Lawyer submitted there should be no order as to costs.
The mother appears for herself and had no legal expenses.
Although the father’s application in effect seeks an indulgence, the proper order is that there be no order as to costs.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 22 February 2012.
Associate:
Date: 22 February 2012
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