Tabb & Tabb
[2017] FamCAFC 169
•21 August 2017
FAMILY COURT OF AUSTRALIA
| TABB & TABB | [2017] FamCAFC 169 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where the father’s appeal was deemed abandoned when he failed to file the appeal books pursuant to court orders – where the father sought to have his appeal reinstated – where there was a three month delay between the appeal being deemed abandoned and when the application was filed – where the parenting orders the subject of the appeal were made in November 2015 – where there is no merit in the appeal – application dismissed – father to pay the mother’s costs. |
| Evidence Act 1995 (Cth) |
Family Law Rules 2004 (Cth)
Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
CDJ v VAJ (1998) 197 CLR 172
Champness v Hanson (2009) FLC 93-407
de Winter & de Winter (1979) 23 ALR 211
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88
Rice and Asplund (1979) FLC 90-725
U v U (2002) 211 CLR 238
| APPLICANT: | Mr Tabb |
| RESPONDENT: | Ms Tabb |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton |
| FILE NUMBER: | BRC | 6891 | of | 2013 |
| APPEAL NUMBER: | NA | 96 | of | 2015 |
| DATE DELIVERED: | 21 August 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 1 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 November 2015 |
| LOWER COURT MNC: | [2015] FCCA 3096 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Carmody |
| SOLICITOR FOR THE RESPONDENT: | Couper Geysen Family and Animal Law |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Boulton, solicitor |
Orders
The Application in an Appeal filed on 28 November 2016 (together with any associated Applications in an Appeal) are dismissed.
The applicant father pay the respondent mother’s party and party costs of and incidental to the application in the amount agreed or, failing agreement, to be assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tabb & Tabb has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 96 of 2015
File Number: BRC 6891 of 2013
| Mr Tabb |
Applicant
And
| Ms Tabb |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By Application in an Appeal filed on 28 November 2016 pursuant to r 22.44 of the Family Law Rules 2004 (Cth) (“the FLR”) Mr Tabb (“the father”) applies for reinstatement of his appeal from parenting orders made by Judge Vasta in the Federal Circuit Court on 20 November 2015 pursuant to the Family Law Act 1975 (Cth) (“the Act”). Whilst the father initiated an appeal within time, the appeal was deemed abandoned on 2 September 2016.
On 30 May 2016 Registrar Kane conducted a procedural hearing for the appeal in accordance with r 22.15 of the FLR at which detailed orders were made, in accordance with r 22.17, to progress preparation of the appeal, including the appeal record. The father was in attendance at that hearing. Those orders required the father to prepare, file and serve appeal books, in accordance with an attached settled index of documents, on or before 4:00 pm on 2 September 2016. Notably, that order allowed a full three months for the father to comply with it.
The orders made included an order in these terms:
4.That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date.
Rule 22.21 of the FLR provides:
22.21 Failure to file appeal books by due date
If the appellant fails to file the appeal books by the date ordered, the appeal is taken to be abandoned.
As a consequence of the father’s failure to comply with the orders made on 30 May 2016 to file appeal books in the terms prescribed by 2 September 2016, his appeal was deemed abandoned by operation of that order, incorporating as it did r 22.21 of the FLR.
It is not without significance to the discretion to be exercised on this application that the father’s non-compliance was with an order of the Court. No challenge was made to the legitimacy of the order made by the Appeals Registrar on 30 May 2016 nor did the father ever make any application, prior to 2 September 2016, for an extension of the time the order prescribed. Moreover, the corollary of the deemed abandonment of the appeal as at 2 September 2016 is that the mother, Ms Tabb, who opposes this application, upon the deemed abandonment of the appeal, accrued a vested right to retain the judgment, the subject of the appeal. To grant this application is to put at risk that vested right.
Whilst the father’s appeal was instituted as of the right conferred by s 94AAA of the Act it is a right that is subject to the limitations imposed by the FLR.
Notably the father, well aware that his appeal was deemed abandoned as at 2 September 2016, delayed until 28 November 2016, almost three months later, in the filing of this application. The relativity of the significance of that delay is provided by reference to the 28 day period prescribed for the filing of an appeal from parenting orders. Moreover, that delay and its effect must be viewed in the context that the subject parenting orders were made on 20 November 2015.
Principles
There is, on the leading authorities concerning appeals in civil litigation, a recognised distinction between an application for an extension of time in which to institute an appeal, on the one hand, and an application to extend some procedural time period with respect to an appeal already lodged within time, on the other. The distinction can be seen to relate to the degree to which inquiry into the merits or prospects of the appeal inform the discretion to be exercised on such respective applications. In the former category of case, failure of the applicant to demonstrate sufficient prospects of success of an appeal may well be determinative. In the other category of case, the Court may have to be satisfied that the appeal is so devoid of merit that it would be futile to extend time before merits of the appeal is given any substantial consideration in the determination to be made (see Gallo v Dawson (1990) 93 ALR 479 per McHugh J for a discussion of the principles in the first category of case and Jackamarra v Krakouer (1998) 195 CLR 516 for a discussion of the principles in the latter category).
Importantly though, this application is not an application to extend time as such. It is an application to reinstate an appeal deemed abandoned by operation of a Court order incorporating the relevant rule. As already referred to, the grant of this application entails risk to the right to retain the judgment which vested in the mother upon the deemed abandonment of the appeal on 2 September 2016. It is thus an application which has much in common with an application to extend time in which to appeal, the category of case considered in Gallo v Dawson (supra).
In my judgment, the prospective merits of the appeal if it is reinstated, is an important consideration in the exercise of discretion on this application, in conjunction with other relevant considerations.
Authorities of the Full Court of this Court such as Bemert & Swallow (2010) FLC 93-441 at 84,900 make clear that:
…the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify any prescribed way the matters that should be taken into account.
The following oft-cited passage from the judgment of McHugh J in Gallo v Dawson (supra) has been cited and applied by the Full Court (see Bemert & Swallow (supra); Rand & Rand [2009] FamCAFC 88; Batey-Elton & Elton [2009] FamCAFC 101) in its relevance to an application for reinstatement:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
In my judgment it follows that the following central considerations, some of which overlap and thus must be considered in combination, inform the discretion to be exercised on this application:
a)The extent of delay, whether there is an adequate explanation for it, and any relevant consequences of delay;
b)The nature of the litigation and the consequences for the parties of the grant, or refusal, of the application;
c)The prospects of the applicant succeeding in the appeal;
d)Whether the applicant demonstrates that to refuse the application would constitute an injustice.
The subject parenting orders made on 20 November 2015
Following a trial conducted over six days in October and November 2015, Judge Vasta made parenting orders concerning the parents’ two children (aged seven and five years respectively at the trial) which provided that the children live with their mother and that she have sole parental responsibility for them. Their time with their father was to occur on a supervised basis by a named contact service provider in Victoria. The time was to occur on the first and third weekends of a full week period, for no longer than six hours at a time, but at the discretion of the supervisor such that if the children were not coping the supervisor had authority to terminate the time. The father was to be responsible for the costs of the supervision, including any costs of his travel to Victoria.
The orders were framed by reference to the fact that since about May 2013, following the parents separation, the children had been living with the mother in Victoria whilst the father remained living in the former matrimonial home in Queensland.
The primary judge also made injunctive orders restraining the father from contacting or approaching the children at any place other than as was provided for in the order and from discussing the mother’s personal life or circumstances with, or in the presence of, the children. The mother was permitted to obtain a passport for the children and to remove them from Australia for the purpose of a holiday.
It was noted that the mother was not required to identify any information which would lead to the identification of the children’s school, treating medical providers or other like persons.
It can be seen from the reasons for judgment that the following central findings by the primary judge, in summary and paraphrased form, informed the orders made, particularly with respect to the requirement that the father’s time with the children be supervised:
a)The father dominated the mother in a physical and psychological sense during the relationship; emotionally coerced the mother in order to control her; and perpetrated acts of physical violence upon the mother (at [12], [13], [15], [16], and [18] to [23]);
b)The father had persistently exposed the children to his feelings of anger towards the mother, his denigration of her, and to issues between the parents in his supervised visits with the children, such conduct including inappropriate questioning of the children (at [47] to [84]);
c)Relying upon the expert evidence of the single expert psychiatrist who assessed both parents, and the single expert family consultant who provided family reports, the primary judge found a risk of emotional harm to the children if there were a continuation of the children’s exposure to the father’s behaviours referred to in an unsupervised setting (at [85] to [106]);
d)There is benefit to the children in maintaining a meaningful relationship with both parents but a need to protect the children from harm (at [118]);
e)There is an unacceptable risk that the children would suffer emotional harm, at the very least, if the father were to have unsupervised time with them (at [125]);
f)It is in the children’s best interests for the mother to have sole parental responsibility (at [122] to [124]).
What must be emphasised in the context of this application appears in the “[c]onclusions on parenting” section of the reasons of the primary judge. Included within that is an extensive quotation from the Full Court’s decision in Champness v Hanson (2009) FLC 93-407 (“Champness”) and the references in that case to a present imposition of supervision of time moving to unsupervised time. The primary judge then recorded, including reference to the expert evidence of the family consultant, at [143] to [145]:
143.I have taken into account the problems associated with supervised visits in the testimony of [the family report writer]. But I cannot see an alternative. It is not a case of “doing courses” or “seeing a psychologist” that will cure this problem.
144.It is only when the father has no interest in the mother that there will be no need for supervision. It is only when the father gains insight into the harm he has caused, and is causing, his daughters that the need for supervision can be looked at again.
145.Accordingly, should the father bring an application supported by plausible evidence suggesting he had addressed these issues, we [sic] have difficulty in seeing how Rice v Asplund (1979) FLC 90-725 could prevent him having his application heard.
Parenting orders following a trial are never “final” orders in the usual meaning of that term in civil litigation where upon the making of final orders, the court’s jurisdiction is spent, other than with respect to the jurisdiction to enforce orders made, or the jurisdiction on appeal. Jurisdiction under the Act with respect to parenting orders is retained notwithstanding the making of
so-called “final” parenting orders following a trial, and whether or not those orders have been subjected to an appeals process.
However, the so-called “rule” in Rice and Asplund (referring to Rice and Asplund (1979) FLC 90-725) is a manifestation of the principle that it will not usually be in a subject child or children’s best interests to be subjected to repeated parenting applications and litigation, unless a sufficient change in circumstances since orders were made can be demonstrated, to justify reconsideration of parenting orders.
Moreover, as the rule in Rice and Asplund (supra) manifests, unlike other civil litigation where the rights of the parties to the litigation are at stake, the persons with a fundamental interest in parenting orders, and arguably the persons whose rights are most affected by parenting orders, are not the parties to the litigation, but the child or children the subject of parenting orders. The objects and principles underlying Part VII of the Act emphasise that it is children who have rights, whilst parents have duties and responsibilities.
These considerations have potency in considering, on this application, whether to refuse it would constitute an injustice, and in considering the consequences for the parties of the grant, or refusal, of the application. The refusal of this application does not carry with it the consequence that the subject parenting orders finally and forever determine the parenting arrangements for these children.
As the above quoted passages from the reasons for judgment reflect, the primary judge was at some pains to emphasise, by reference to the decision of the Full Court in Champness, that if the father was able to support a further application for parenting orders with “plausible evidence” that he had addressed the issues founding his Honour’s conclusions as to unacceptable risk, the rule in Rice and Asplund would not operate to forestall the Court’s consideration of such an application.
Indeed, on this application the father sought to rely upon evidence that he has completed a Positive Parenting Program and has undertaken some four sessions of therapy with a psychologist on referral “due to symptoms of stress”. The mother objected to that evidence being received as being misconceived on this application and, that aside, it is obvious that the mother would seek to test that evidence at a trial, insofar as it could be characterised as “plausible evidence” of the father having addressed the issues referred to. It is readily apparent that having regard to the nature of the evidence, and the nature of the dispute about it, that the subject evidence would not meet any of the criteria for a Full Court to receive that evidence on appeal pursuant to s 93A(2) of the Act as laid down in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”). There, McHugh, Gummow and Callinan JJ said this:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration…
It follows that it cannot be concluded that if this application were granted, the father would succeed in an application to adduce this as further evidence on appeal. To the contrary, such an application would likely be doomed to fail.
Delay
Reference has already been made to the relative significance of the father’s delay in filing this application some three months after his appeal was deemed abandoned.
Reference has already been made to the feature that such delay follows upon orders made by the Appeals Registrar on 30 May 2016 which allowed until 2 September 2016, a full three months, for the father to attend to preparation, filing and service of the appeal record.
The father’s affidavit filed on 28 November 2016 in support of his application is devoid of any explanation for this delay. On the hearing of the application the father asserted to the effect that he had made attempts to file such an application prior to 28 November 2016. Those assertions cannot be accepted given that they are not the subject of evidence, nor corroborated by any other evidence pointed to by the father.
The obvious consequence of the father’s delay is that this application was filed more than 12 months after the subject parenting orders were made and after the appeal was deemed abandoned on 2 September 2016. Obviously, the parenting orders made on 20 November 2015 have been in effect since their making. If the application were to be granted the appeal, on the current state of listings, is unlikely to be heard in the current calendar year. That would mean the appeal is not heard, or determined, until more than two years after the making of the subject parenting orders.
In my judgment the father’s delay, and lack of explanation for it, is a significant discretionary factor weighing against the granting of the application.
In relation to the father’s failure to file appeal books in accordance with the orders referred to by 2 September 2016, it is clear from correspondence from the Appeals Registrar within the file that the father made some attempt to file some documents. That correspondence records:
As the appeal books were not prepared in accordance with the Settled Appeal Index the appeal books were not accepted for filing from the appellant on Friday 2 September 2016.
The father offered what is a misleading explanation that the appeal books were not accepted for filing because they were “in folders”. What became apparent on the hearing of this application is that what the father attempted to file was not in compliance with the order of 30 May 2016 and the Settled Index included within those orders of the documents to be included in the appeal books. In particular, the orders required a transcript of the trial proceedings to be included as part of the appeal record. As the father acknowledged on the hearing of this application, he did not obtain the transcript and, as at the hearing, had still not obtained it.
Indeed, on the hearing of this application the father contended that he would either seek to have this Court fund the cost of obtaining a transcript for the six days of trial in the Federal Circuit Court or, in the alternative, would seek to proceed with his appeal without transcript.
This Court does not have the resources to fund the obtaining of transcripts of trials either in the Federal Circuit Court or in the trial division of this Court for the purposes of an appeal. In any event, no cogent reason, beyond the father’s assertions as to his constrained financial circumstances, were provided by the father for the contention that this Court should direct public funds to relieving the father of the expense of obtaining a trial transcript.
It follows that if this appeal were to proceed it would likely proceed without the parties, or the Court, having the availability of the trial transcript.
Thus the merits of the father’s appeal, now to be considered, fall to be considered in the context that it is unlikely there would be any trial transcript available to either the parties, or to a Full Court, hearing and determining the appeal.
The merits of the appeal
Before discussing the contents of the father’s Amended Notice of Appeal filed on 11 July 2016, some matters of general principle may be stated as relevant to assessing the prospective merits of an appeal from parenting orders.
First, an appeal from a discretionary judgment confronts the well-known limitations upon legitimate appellate interference established by authority of longstanding (House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).
Second, a discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition (U v U (2002) 211 CLR 238 per Gummow and Callinan JJ at [90]; and CDJ). In CDJ McHugh, Gummow and Callinan JJ observed of applications for parenting orders and of their determination as follows at p 218-219:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
Third, the applicant for reinstatement does not demonstrate that the appeal is arguable by merely identifying or stating the arguments the applicant would seek to advance on appeal. Within the context of the principles referred to above governing appellate intervention in a discretionary judgment determining parenting orders, the applicant must demonstrate that there is sufficient substance in the challenges sought to be advanced on appeal to show that the applicant would suffer an injustice if the application were not granted.
In this case, given the preceding discussion about the non-availability of trial transcript, the applicant’s prospects are to be assessed given the reality that a trial transcript would not be available to the parties or to the Court if an appeal were to proceed. As it is the applicant’s non-compliance with an order that results in that circumstance, the non-availability of transcript should not operate in the applicant’s favour. That is, any of the proposed challenges on appeal of the applicant which are dependent upon the transcript record of what was, or was not, the evidence at trial or what did, or did not, occur in the conduct of the trial, must necessarily be treated as being incapable of being established.
Turning then to the father’s Amended Notice of Appeal filed on 11 July 2016, it must be observed that with all due respect to the father, who is acting on his own behalf and has no relevant legal training or experience, many of his proposed grounds of appeal are not proper grounds of appeal, lacking as they are any discernible particulars sufficient to identify the actual error or errors asserted. As but one example is the bare assertion in what appears to be Ground (1) that:
(1)The judgment of the trial Judge represented an unbalanced assessment of the claims of the parties.
Likewise, what appears as Ground (3) comprises the bare assertion:
(3)Having regard to the whole of the evidence before the trial Judge the decision was plainly wrong.
Several grounds, or perhaps more accurately narrative within the Amended Notice of Appeal, make references to, respectively, ss 44, 59 and 43 of the Evidence Act 1995 (Cth) (“the EA”). However, leaving aside whether those sections can be interpreted in the manner in which the father appears to contend, those sections had no application in the subject proceedings. The subject proceedings were “child-related proceedings” within the meaning of Division 12A of the Act and s 69ZT within that Division expressly excludes the applicability of those, and other, provisions of the EA. Those grounds founded upon those sections cannot possibly succeed.
It appears that the father seeks to rely upon those provisions for the proposition that the primary judge was wrong to rely upon, at least some of, the evidence sourced to several entities which had historically undertaken supervision of the father’s time with the children and formed part of the body of evidence founding the primary judge’s conclusions that the father’s conduct posed a risk of emotional harm to the children. However, aside from evidence sourced to providers of supervision services, which was in fact admissible in the proceedings, reference has already been made to the fact that the reasons for judgment make plain that the primary judge also relied upon the expert evidence of the single expert psychiatrist and of the single expert family consultant for his findings as to unacceptable risk.
There is no discernible challenge within the Amended Notice of Appeal to the expert psychiatrist’s opinion or to the primary judge’s apparent acceptance of that opinion. An apparent challenge to the family consultant’s opinion, as expressed by the father in the Amended Notice of Appeal is:
The Family Report Writer was not told or given the List of Documents showing The father is a practising Christian and goes to church on Sundays not mentioned by Judge Vasta…
(Emphasis as in original)
Leaving aside that the father had the opportunity to put propositions to the expert family consultant in cross-examination, even assuming the family consultant proceeded in ignorance of the father’s religious observance, it is inconceivable that such information was even remotely material to the opinions of the expert on the central issue of unacceptable risk, or the conclusions of the primary judge on that topic.
In oral argument the father sought to emphasise that he is a Christian and also that he has worked as a mental health nurse. These facts were seemingly relied upon by the father as in themselves carrying the consequence that he could not be capable of posing any risk to his children. That nexus is not tenable and these grounds have no substance.
The reference in the father’s Amended Notice of Appeal to “s 64(1)” of the Act is misplaced as there is no such section in the Act. However, the narrative accompanying the reference suggests that the intended reference is to s 60CC(3)(a) being:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The father contends that the children love him and have continually expressed a desire to spend more time with him and continue to express a desire for him to live with them (and their mother). The primary judge observed that the children enjoy their time with their father but were too young, at seven and five years of age respectively, for their views about where they should live to have determinative significance (at [121(a)]). The primary judge accepted the evidence of the family report writer that the children would suffer a loss if their relationship with their father was severed by the operation of orders (at [102]).
Plainly, the primary judge accepted and found that there is a benefit to the children having a meaningful relationship with both parents (at [118(a)]).
There is no prospect of the father succeeding in a challenge to the effect that the primary judge failed to have regard to the views of the children or failed to give the children’s views sufficient weight. In accordance with s 60CC(3)(a) the primary judge’s reasons reflect that his Honour properly had regard to the children’s level of maturity and understanding, assisted by the family consultant’s reports and opinions, in assessing the children’s relationship with the father and the significance of their views. Plainly, it was the father’s behaviours constituting an unacceptable risk of harm to the children, allied with the geographical distance between the respective residences of the parents, that dictated the orders made. To the extent the father’s challenges on appeal rely on the children’s views, they are doomed to fail.
The father’s Amended Notice of Appeal contends that the primary judge’s discretion miscarried. Whilst this ground of appeal as particularised in the Amended Notice of Appeal does not provide sufficient particularity to ascertain what aspect of the primary judge’s orders are said to be “plainly wrong”, this contention was further developed during oral submissions on the hearing of the application. The father broadly asserted that a long-term supervision order was not in the best interests of the children and that his Honour’s discretion miscarried in so ordering. The father contended that there was “hardly any precedent” for ordering a “Christian or male nurse” to see his children under supervision. As has already been demonstrated, the reasons for judgment plainly reflect that if the father could bring forward “plausible evidence” that he has addressed the issues giving rise to the foundation for a conclusion of unacceptable risk, then it is likely that a Court would consider the father’s further application for parenting orders. It is plain from a reading of the reasons for judgment as a whole that the primary judge was keenly aware of balancing between preservation of the children’s relationship with their father; the need to protect them from the risk of harm he posed; and potential review of parenting orders if the father supported a further application with “plausible evidence” that he had addressed risk issues. Again, the nexus the father seeks to draw between the fact of his Christianity and work as a male nurse and consequent lack of any risk posed by him, is untenable. There is no substance in these grounds and they cannot possibly succeed.
The father asserted a factual error made by the primary judge in finding that the parents cohabited prior to 2004. The primary judge found, at [2], that the parties met in early 2003 and commenced cohabitation shortly thereafter. The father did not direct the Court to any evidence establishing that, if indeed this was an error by the primary judge, it had any material effect upon the primary judge’s consideration of parenting orders in the children’s best interests. Thus, even if the father could establish such an error of fact, he cannot establish that it is material to the outcome (de Winter & de Winter (1979) 23 ALR 211). It is thus a challenge without substance.
In the hearing of the application the father placed significant emphasis upon his assertion that the mother was in a de facto relationship with a Mr Jones. At trial, the mother denied, and the primary judge accepted her denial, that the relationship was in fact a de facto relationship. Nothing to which the father directed the Court’s attention supported the conclusion that it was not open to the primary judge to accept the mother’s evidence on this issue, nor that anything material turned upon this issue in any event having regard to the central issues, and the parenting orders that were made.
The father asserts that the primary judge erred in finding that the father was the perpetrator of domestic violence towards the mother. The father pointed to the evidence that he does not have a criminal history and evidence that there has been a domestic violence order taken out against the mother. However, all of these arguments confront the fundamental impediment that the primary judge had the opportunity to hear and see each of the parents give evidence over the course of the trial, including under cross-examination. The primary judge discussed the evidence and his findings concerning domestic violence or family violence in some detail (at [18] to [42]). Nothing to which the father directed attention rendered any conclusion to the effect that it was not open to the primary judge to accept the mother’s evidence concerning the nature of coercion and control perpetrated by the father towards her during the relationship, or his acts of physical violence towards the mother, as found by the primary judge. There is no prospect of challenges to these findings succeeding on appeal.
Having made findings about the existence of family violence committed by the father toward the mother, the primary judge was correct in finding that the presumption in s 61DA(1) of the Act did not apply, by virtue of subsection (2) of that section. Given that the presumption did not apply, and that his Honour did not propose to make an order for equal shared parental responsibility, the primary judge was not bound to consider whether it was in the children’s best interests to spend equal or substantial and significant time with their father. Nevertheless, it is plain that the primary judge did consider what appropriate orders for time could be formulated given the parties’ respective places of residence, and the need to protect the children from the unacceptable risk of harm that unsupervised time with their father would pose to them. There is no prospect of the father succeeding on appeal in contentions as to the primary judge’s consideration, or asserted lack of consideration, of equal time or substantial and significant time.
In his Amended Notice of Appeal and in the course of his oral argument of this application, the father mounts a broad contention that a “[l]ist of [d]ocuments” ought to have been admitted into evidence by the primary judge. However, as counsel for the mother pointed out, the father’s legal representatives at trial did not seek to rely upon these documents at the trial and as such there was no error made by the primary judge in this respect. Moreover, to the extent that the purported “[l]ist of [d]ocuments” seems to be contended by the father as posing questions as to the mother’s parenting capacity, all that need be observed is that in the orders the father would seek on appeal by way of re-exercise of discretion, the children would be spending equal time with each parent. That is, by the father’s own proposal there is nothing about the mother rendering it contrary to the children’s best interests that they would spend at least equal time in her care. There is no substance in these proposed challenges.
For the foregoing reasons it may readily be concluded that the father does not have an arguable appeal from the subject parenting orders. In my judgment the grant of this application would be an exercise in futility as the father’s appeal is so lacking in merit as to be futile. For the same reasons refusal of this application does not constitute an injustice.
Whilst that is sufficient reason to dismiss the application, I would only add that the hardship or prejudice to the mother of allowing this application is obvious. First, it would be an injustice to the mother to allow an appeal devoid of merit to proceed. Second, the stress and inconvenience to the mother that has been unduly prolonged because of the father’s delay would be unnecessarily continued in circumstances where a meritless appeal would not be likely to be heard until next year and well over two years since the making of the subject parenting orders. Finally, that same effluxion of time means that even if it were otherwise, that is, that the father had some prospects of success on appeal, it would be inevitable, given the ages of the children and the time effluxion involved, that a Full Court would not re-exercise the discretion and the proceedings would have to be remitted for re-trial.
For these reasons the application is dismissed. For completeness, all applications by the father in the appeal, including his application for further evidence, should be formally dismissed and I will so order.
Costs
The children’s appointed Independent Children’s Lawyer (“ICL”) took no active part in this application and sought no order with respect to the costs of it.
The father sought an order, maintaining his position that the mother is in a de facto relationship, that the mother and putative de facto partner (who is not in fact a party to these proceedings), be responsible for his costs, notwithstanding that the father was seeking an indulgence. Obviously, there is no basis for such an order given the outcome of this application.
The mother, who is in receipt of legal aid, sought an order for costs of the application in her favour.
The father filed a Financial Statement on 28 November 2016 and an affidavit on 16 February 2017 containing some details about expenditure. It is clear that the father’s financial circumstances are constrained although it is not clear, given the father’s claimed experience as a mental health nurse, whether the modest employment income he deposes to represents the full extent of his earning capacity. The father has met, and will likely continue to meet, substantial costs involved in his having time with the children in accordance with the subject parenting orders.
In my judgment, the fact that the father instituted an appeal without merit; defaulted in complying with the order of 30 May 2016 with the consequences of that for the legally aided mother and likewise publicly funded ICL; and pursued this meritless application which has been wholly unsuccessful; combine to provide justifying circumstances, within the meaning of s 117(2) of the Act, for an order for costs to be made in favour of the mother.
The father’s conduct of the appeal is a relevant consideration (s 117(2A)(c)); as is the fact that this application was necessitated by the father’s failure to comply with the order of 30 May 2016 (s 117(2A)(d)); and the fact that the father has been wholly unsuccessful on this application (s 117(2A)(e)).
Those factors outweigh the father’s financial circumstances as a consideration (s 117(2A)(a)). I am therefore of the opinion that there are circumstances that justify making an order that the father pay the mother’s costs of and incidental to this application to be agreed or, failing agreement, to be assessed and I so order.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 21 August 2017.
Associate:
Date: 21 August 2017
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