THEOPHANE & HUNT
[2013] FamCAFC 68
FAMILY COURT OF AUSTRALIA
THEOPHANE & HUNT [2013] FamCAFC 68
FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made an order purportedly pursuant to Division 12A of the Family Law Act 1975 (Cth) restraining by injunction each of the parties from commencing any parenting or enforcement proceedings without the leave of the court – Appealable error established – Held Division 12A does not empower the court to make such an order – Appeal allowed to that limited extent.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant father sought to adduce further evidence – Held documents which were the subject of the application, if admitted, would not have shown error or led to a different result – Application dismissed.
Family Law Act 1975 (Cth)
Bennett v Bennett (2001) FLC 93-088
Fargo & Lark [2011] FamCA 238
MRR v GR (2010) 240 CLR 461
APPELLANT: Mr Theophane
RESPONDENT: Ms Hunt
INDEPENDENT CHILDREN’S LAWYER: Susan Gray
FILE NUMBER: CSC 1089 of 2007
APPEAL NUMBER: NA 98 of 2011
DATE DELIVERED: 1 May 2013
PLACE DELIVERED: Brisbane
DATE HEARD: 3 September 2012
PLACE HEARD: Brisbane
JUDGMENT OF: Faulks DCJ, Finn & Ainslie-Wallace JJ
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT ORDERS MADE: 5 December 2011
LOWER COURT REASONS DELIVERED: 20 December 2011
LOWER COURT MNC: [2011] FamCA 968 REPRESENTATION
FOR THE APPELLANT: Mr Theophane in person
COUNSEL FOR THE RESPONDENT: Mr Page SC and Mr Williams of Counsel
SOLICITOR FOR THE RESPONDENT: O’Reilly Stevens Bovey
COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Ms McArdle
SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:
Ms Susan Gray Orders
(1)The appeal be allowed to the limited extent provided by Order 2 of these orders.
(2)Order 26 of the orders made on 5 December 2011 by the Honourable Justice Benjamin be set aside.
(3)The appeal be otherwise dismissed.
(4)The application by the father to adduce further evidence be dismissed.
(5)There be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal Number: NA 98 of 2011
File Number: CSC 1089 of 2007
Mr Theophane Appellant
And
Ms Hunt Respondent
REASONS FOR JUDGMENT
1.Mr Theophane (“the father”) appeals against interim orders made by Benjamin J on 5 December 2011 in relation to the child X (“the child”) of his relationship with Ms Hunt (“the mother”). The child was born in September 2006. The mother and father entered into a relationship in December 2005 and separated in about September 2007.
2.The mother entered into another relationship in 2008 and she remarried in 2011. She and her husband have a child, Z, who was born in 2010.
3.On 5 December 2011 his Honour discharged all previous parenting orders and ordered inter alia that both parties be restrained from relocating the child’s place of residence from the Cairns area; that the child, from 11 December 2011, live with the mother; and that the child, from that date, spend time with the father.
4.Although his Honour’s orders were expressed as interim orders, it was envisaged that they would remain in place for between two and three years. The circumstances facing his Honour were unusual.
5.The mother is awaiting trial on a charge of attempting to murder the father in circumstances which are alleged to be as follows. On … September 2011 the mother, wearing a wig and armed with a knife, drove to the father’s house and stabbed him. The father received wounds that required medical attention. The mother was arrested not far from the father’s house and charged with attempted murder. She was held in custody for a week and then released on bail. Her trial is pending. It is not clear when the trial is to take place. His Honour suggested that it might be in some two to three years’ time.
6.It was the mother’s contention that her action in stabbing the father was the culmination of years of abuse at his hands and her actions were precipitated by the father threatening her young child, Z.
7.After the mother’s arrest, on the father’s application, interim orders were made placing the child in his care. Further orders were made by which the mother had supervised time with the child.
8.The matter came before his Honour on 9 November 2011 to consider with whom the child would live pending the conclusion of the criminal proceedings. The father proposed that the child live with him and that he be permitted to relocate the child’s residence to Melbourne where his mother lives.
Background
9.The parties have been litigating in the Family Court and in the Federal Magistrates Court since December 2007 and have also engaged in litigation in other courts.
10.It was uncontentious that, up until her arrest, the mother had been the primary carer for the child.
11.In earlier proceedings between the parties in late 2009, Benjamin J made orders that the child live with the mother and spend time with the father. He ordered the mother to have sole parental responsibility.
12.In the instant proceedings, his Honour incorporated into his reasons at [209] findings made in reasons for judgment delivered by him on 6 November 2009 which were:
·The mother was the primary connection with the child and that her general parenting was of a high quality.
·The Court was not satisfied that the father encouraged a relationship between the child and the mother.
·The financial care of the child had been left almost entirely to the mother.
·There was a need to protect the child, so far as possible, from the conflict between the parties.
13.After the orders were made in November 2009 the father filed a number of applications alleging that the mother had contravened orders for contact between him and the child. None was successful. The final contravention application was heard and dismissed on 19 August 2011. In dismissing the application, Federal Magistrate Coker (as he then was), while finding that there had been contraventions of the orders, expressed the view that the mother was at “…the end of her tether…” (at [24] of the Federal Magistrate’s reasons of 19 August 2011).
14.While the proceedings before Benjamin J which give rise to this appeal were for interim orders, and cross-examination is not usually undertaken in interim hearings, his Honour did allow for cross-examination of the parties and witnesses in this interim hearing as it was envisaged that the orders made by his Honour would obtain for some years.
The Trial Judge’s Reasons
15.The trial Judge identified the issues for his determination (at [18]):
a)whether the mother (given her conduct towards the father) posed a threat to the child if they spent time together;
b)whether the mother’s psychiatric and psychological state was such that she could be a primary carer of the child and, if so, in what circumstances;
c)whether the mother was the subject of domestic violence from the father and whether that violence continued after separation in the form of threats, or, intimidation or through the instigation of court proceedings; and
d)a consideration of the primary and other matters to which s 60CC of the Family Law Act 1975 (Cth) (“the Act”) refers.
16.His Honour had the benefit of considerable expert psychiatric opinion as to the mother’s mental health. In addition, a family consultant prepared a report and gave oral evidence.
17.His Honour observed that the three experts and the family consultant were all of the view that the mother does not present a current risk to the child and her behaviour towards the father “…had been protective of a child” (at [247]). His Honour noted that the experts’ evidence was that the mother needs ongoing therapy to support her mental health (at [297]).
18.His Honour found:
313. Having regard to the events of […] September 2011, on the surface at least, the mother may have appeared to present a direct risk to the children. However, the direct evidence of the experts is that the action of the mother (albeit wrong actions) were designed to protect the children [sic] not designed to harm the children [sic]. The risk, in terms of the mother, would arise if her mental condition were allowed to deteriorate as it did through August and early September 2011.
314.In the interim, having considered the expert medical evidence, I am satisfied that this can be managed by undertaking the treatment and medical interventions suggested by the family consultant and, for a period of time, that there be some supervision of the mother, not supervision to protect the child from the harm of the mother but to ensure that the mother’s mental health is able to continue its improvement and not deteriorate.
…
317. Unfortunately, the mother did not undertake sufficient psychological assistance as was ordered by the Court in November 2009. To ensure compliance, and in accordance with recommendation of the family consultant, I have appointed a supervisor under s 65L of the Family Law Act.
19.Order 14 made on 6 November 2009 required the mother to have some assistance with her mental health, but she had failed to sufficiently comply.
20.As to the mother’s capacity to care for the child, the trial Judge set out and adopted the submissions of the Independent Children's Lawyer (at [291]). His Honour found that the child loves and is loved by the father, but the father did not accept that the child has a close relationship with the mother and the father could not acknowledge that she was a good mother. His Honour further found that the expert opinion was to the effect that the child is missing her mother and her psychological health will suffer if she is not returned to her mother’s care.
21.His Honour concluded that the mother, having been the primary carer for the child, has the primary connection with the child (at [341] and [342]). His Honour further found that the child has a good relationship with her half brother, Z, and the child is “…very much a part of the maternal family and they have been significantly involved in her care since separation”.
22.His Honour found that there was some evidence that the mother has tried to maintain a relationship between the child and the father, noting that she sought orders that the child and the father should continue to have time together.
23.His Honour concluded that the father’s proposal to move with the child to Melbourne would put an end to the child’s relationship with the mother (at [291]). His Honour accepted that the evidence established that the child’s relationship with the father was improving. His Honour noted however that the family consultant had said, in her opinion, it was likely the father would undermine the child’s time with her mother and the father was determined to prevent the close relationship that the child has with the mother (at [348]).
24.His Honour was not satisfied that the father would facilitate and encourage a close relationship between the child and the mother and the broader maternal family (at [349]).
25.His Honour found that, while the child missed her mother, the father had no insight into this and he nonetheless persisted in an application to relocate the child’s residence to Melbourne (at [350] and [351]).
26.His Honour found that the father’s proposal to relocate the child’s residence was not well thought out and lacked insight that it would have the effect of isolating the child from her primary attachment, her mother (at [391]).
27.His Honour concluded that the mother has the better capacity to provide for the emotional, intellectual and physical needs of the child (at [357]).
28.In considering the issue of family violence, the trial Judge set out the mother’s assertions of violence and abuse throughout her relationship with the father and of threats and harassment after their separation. His Honour referred to the fact that a State Magistrate had found that the father had assaulted the mother in the presence of the child (at [362]).
29.His Honour concluded that the evidence persuaded him that the child should be returned to the care of her mother as soon as practicable (at [374]).
30.Given the circumstances of the matter, his Honour found that the presumption of equal shared parental responsibility was rebutted and neither equal time nor substantial and significant time was in the best interests of the child (at [382] and [383]).
31.His Honour further found that the parties were unable to exercise joint parental responsibility and considered that the mother should have sole parental responsibility (at [395] and [396]).
32.His Honour determined that, in all of the circumstances, the child should return to live with her mother and that, for the first six months following the child’s return, the mother should be supervised by her parents and further that the mother undertake therapy for her continued mental health.
33.His Honour made orders that provided for the child to spend time with the father provided there would be no contact between the mother and the father when the little girl moved between the parties (at [402]).
The Appeal
34.The father appeared for himself and drafted the ten grounds of appeal himself. It will be obvious that, in many of the grounds, the complaint made is not easy to discern nor does the father’s written argument provide much assistance in understanding the asserted grounds. In oral argument, the father was able to refine and explain his grounds. This was of considerable assistance to us.
Ground 1: “Erred in Law under Division 12A Family Law Act 1975”
35.Division 12A sets out principles for the conduct of proceedings relating to children. From the father’s submissions, it seems that his complaints relate not only to procedure but also to matters which he says indicate that the trial Judge had predetermined the outcome of the hearing and then conducted the trial with a closed mind.
36.Principal among the complaints about procedure is the father’s contention that the trial Judge’s adoption of a “different approach” to the interim hearing was not made clear to him by the trial Judge and he was then at a disadvantage.
37.His Honour said:
15.The Court adopted a different approach in terms of the interim hearing as it may well be that the criminal proceedings against one and/or other of the parties could take one year, two years or even three years to work their way through that process. As such any interim order is likely to be in place for a considerable period of time.
16. As a result, whilst the proceedings were of an interim nature, the Court permitted cross-examination of witnesses, ordered an up to date family report and arranged for psychiatric evidence to be provided by way of single expert report.
38.This very matter was raised by the trial Judge with the parties on 30 September 2011 (the transcript of that day was not in the appeal books but was provided to us separately in advance of the appeal hearing). On that date his Honour canvassed with the parties the time needed to hear the application and discussed procedural matters. The father appeared for himself and participated in the discussions which concerned the filing of further material and the preparation of an expert report. His Honour heard submissions and made orders for time to be spent between the child and the mother.
39.His Honour listed the matter for hearing before him for three days commencing 9 November 2011 and made directions for the filing of affidavits and which of the proposed witnesses would be cross-examined (Transcript of 30 September 2011, pages 26, 27 and 28). His Honour informed the parties that further witnesses were not to be called without his leave and, if there were any other witnesses they wanted to call, he wanted to know who they were (Transcript of 30 September 2011, page 27).
40.Throughout the proceedings of that day, it is apparent that his Honour explained to the father what he was proposing to order and the process that the trial would follow. The father was given ample opportunity to ask questions and on occasions did so.
41.Whether or not the procedure adopted by his Honour for the hearing of this particular matter was unusual is not the point. His Honour went to some pains to explain the process to the father to ensure that the father understood what was to happen and we can see no unfairness to the father through this process. The following extract from the transcript of the proceedings on 30 September 2011 is an example of the explanations the trial Judge provided to the father (Transcript of 30 September 2011, pages 29 to 31):
HIS HONOUR: Well, if you want to cross-examine someone, let me know, because what I’m intending to do is give the parties half a day with the experts, from 10 o’clock to 1 o’clock, and I will get my associate to make a note of this so that we can deal with the experts in that time.
…
HIS HONOUR: … So the way this interim case will be run will hopefully be that the – will be that the expert evidence will be in the morning and each party will have up to an hour with the experts. And I may in fact have all three available for cross-examination at the same time, and each of the parties and the independent children’s lawyer will have one hour cross-examining them. So if you’re going to make questions, you had better write the questions down.
In the afternoon we will have the mother’s case, and cross-examination of the mother, and the mother’s witnesses from Wednesday afternoon until Thursday lunchtime. So if you want to cross-examine the mother or any of her witnesses, the time will be up to you. If you use all the time on the mother, well, then the other witnesses shan’t be there. On the Thursday, [Mr Theophane], you will be made available for cross-examination; you said you were content with that. Then what time is left over for all of your witnesses on Friday morning, and then Friday afternoon would be the time for submissions in relation to the matter.
42.Equally, when the matter proceeded before his Honour, he again assisted the father to understand the process as the trial evolved.
43.The father also argued that, during the hearing, his Honour did not assist him by indicating how the father should make submissions and argued that his Honour was obliged to direct the father’s attention to important sections of the Act and invite submissions on those sections. Having considered the transcript of the trial, we are of the view that his Honour gave the father considerable and appropriate assistance and explanation during the hearing.
44.On 24 January 2011 the father had filed an affidavit to which he annexed reasons for decision of the trial Judge delivered in November 2009. The reasons set out clearly the relevant sections of the Act including s 60CC and its subsections (at [17] to [27]). Those reasons informed the father about the relevant legal principles to be applied in parenting proceedings, including the objects of the Act and the relevant sections of the Act.
45.It is pertinent to note that the father did not say how, or if, he was prejudiced by the asserted failure by his Honour to instruct him about the sections of the Act and, in any event, we find no force in this complaint.
46.The father also argued under this ground that his Honour was biased against him and had predetermined the case. He argued that his Honour presented an appearance of not being impartial because he handed to the parties a judgment previously delivered by him (Fargo & Lark [2011] FamCA 238 (“Fargo & Lark”)). That case related to a child whose parents had been engaged in litigation and his Honour made an injunction restraining parties from commencing proceedings. The father argued that in providing that decision, his Honour was indicating to the mother and the Independent Children’s Lawyer his decided course for the trial and had “prejudged” the case.
47.The transcript indicates the circumstances in which his Honour provided the case of Fargo & Lark to the parties. The mother’s counsel argued that there should be some limitation on the ability of both parties to come to court unnecessarily (Transcript of 10 November 2011, page 80). In light of this, his Honour pointed the parties to Fargo & Lark, a decision in which his Honour had made an injunction restraining the parties from commencing proceedings (Transcript of 10 November 2011, page 80):
HIS HONOUR: … using the powers under division 12A, I prevented either of the parents from commencing proceedings without leave of the court, and they had to apply, initially to me, to get leave without serving the other party, in the hope that that would dissuade unnecessary litigation…
48.His Honour then said:
HIS HONOUR: … I will see if I can dig out that case and make it available. I’m not sure that that’s a view that I will take at the end of the day, having regard to your evidence?
(emphasis added)
49.His Honour explicitly said that he was undecided as to whether he would take the same view in this matter as he did in Fargo & Lark. In light of this, we do not agree with the father’s submission that his Honour had formed a concluded view about the matter. We reject this argument.
50.Ground 1 has not been established.
Ground 2: “Respondent has not been assessed by Mental Health Unit…”
51.The father explained that he conducted some research to the effect that if the mother had a “neural scan” it would determine the state of her mental health. The father conceded that this had not been the subject of evidence before his Honour. It is not entirely clear when the father’s research revealed this process but his complaint seemed to us to be that he was not permitted to recall any of the experts in the case to put questions to them about the mother undergoing a neural scan. He also conceded that he made no application to his Honour to either re-open the case or recall any of the experts for further cross-examination. Apart from the obvious questions as to the utility of such a process in determining mental state, it is not appropriate to sheet error home to his Honour in relation to a matter which was never brought to his attention.
Failure to allow Cross-examination
52.His Honour’s failure to allow further cross-examination was raised in relation to a number of grounds and it is convenient for us to consider it under this ground. The father complained that after the mother gave evidence and was cross-examined, her mother gave evidence. The father said that he wanted to re-call the mother for further questioning on matters arising from the grandmother’s evidence. Again, the father conceded that he had not made this application to his Honour.
53.In the absence of any application by the father to his Honour there is no error.
54.When this and other matters were raised during the oral argument before us, the father said that the trial moved too quickly to enable him to make such applications and he said that during the trial, issues were raised after other witnesses had already given evidence and there was no time to ask that they be recalled.
55.It will always be difficult for self-represented parties to know how to cross-examine witnesses and indeed on what topics; however, as we have said, in the absence of an application, there is no error.
56.Ground 2 has not been established.
Ground 3: “Fargo and Lark [2011] FamCA 238 referred to his Honour own case law in these Interim Proceedings being bias”
57.This ground was argued by the father when addressing us about Division 12A and the asserted bias of his Honour handing to the parties a case decided by him and to the extent that we have considered this ground, we do not propose to repeat what we said.
58.However, when he came to address this specific ground, the father further said that by referring to this case, his Honour misdirected himself as to the law. The father said that in Fargo & Lark, his Honour referred to MRR v GR (2010) 240 CLR 461 (“MRR v GR”) which, according to the father “concerned consent orders” and these proceedings were contested proceedings, and thus his Honour erred.
59.It is not surprising that a self-represented litigant would find the court’s relying upon other decided cases as precedents to be confusing. MRR v GR is not predicated on the fact that the orders under consideration were consent orders. The reference in Fargo & Lark to MRR v GR did not amount to his Honour misdirecting himself. In Fargo & Lark, his Honour relied on MRR v GR as authority for the fact that the Court must consider equal time or substantial and significant time if there is an order for equal shared parental responsibility:
44.In that evaluation, if there is to be an order for equal shared parental responsibility, the Court must consider:-
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents.
60.The father argued that as both the mother and the Independent Children’s Lawyer relied on MRR v GR in submissions, it demonstrated his Honour’s bias.
61.The father sought an order that he be permitted to relocate the child’s residence to Melbourne in the event that she was to live with him. The authority of MRR v GR was relevant to the determination of that issue.
62.Ground 3 has not been established.
Ground 4: “Erred in law not addressing the Applicant to section 60CC under the Family Law Act by order of the Court”
63.Again, the thrust of this ground was covered by the father when addressing the first appeal ground.
64.
The father argued that his Honour failed to consider the relevant sections under the Act. The father submitted that his Honour made no mention of
ss 60B(1)(a) and (b), 60CA, 61DA(4), 65DAA(1)(a), (2) and (2)(c) [written argument page 9].
65.Section 60B sets out the objects and principles relevant to children’s matters. Subsections 60B(1)(a) and (b) relate to ensuring the best interests of a child are met by having the benefit of a meaningful relationship with both parents and protecting a child from harm of the types to which the subsection refers.
66.Section 60CA requires the Court to regard the best interests of the child as the paramount concern when considering whether to make a particular parenting order.
67.Section 61DA concerns the presumption of equal shared parental responsibility. That presumption is rebuttable and subsection (4) provides that it “may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility”. Subsection 61DA(3) applies when a court is making an interim order. It states that the presumption applies “unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order”.
68.Section 65DAA applies if a parenting order provides that a child’s parents are to have equal shared parental responsibility.
69.It is first important to observe that his Honour was dealing with an interim application, albeit one where on all expectations, the final determination of parenting issues was some time away. His Honour was conscious of this and of the fact that any interim order was “likely to be in place for a considerable period of time” (at [15])
70.His Honour set out all of the relevant legal principles to be considered (at [53]). We do not understand there to be any challenge to the correctness of the law as outlined by his Honour. His Honour turned his mind to the benefit to the child of having a meaningful relationship with each parent and to the need to protect the child from abuse (at [303] and [338]).
71.His Honour was cognisant of the requirement that the best interests of the child be regarded as the paramount consideration (see [53]). The factors to be considered in determining the best interests of the child are set out in s 60CC and his Honour considered and discussed the relevant subsections of s 60CC (at [303] to [379]).
72.The trial Judge indicated his view that the case was one in which the best interests of the child meant that the presumption of equal shared parental responsibility did not apply (at [382]).
73.Having so found, his Honour was not required to consider s 65DAA.
74.Although not directly asserted, to the extent that the father’s submissions challenge the correctness of his Honour’s findings in relation to the relevant statutory provisions, we are of the view that each finding was available to his Honour on the evidence, and, given the circumstances with which he was then dealing, that the mother was charged with a serious criminal offence, there were allegations of family violence and the mother’s bail conditions prevented her from being within some distance of the father, his finding that the presumption in s 61DA was rebutted was not only available to him but, in our view, an irresistible finding.
Ground 5: “Erred in law Respondent pose unacceptable risk to the child”
75.The father argued that his Honour should have found that the mother posed an unacceptable risk to the child.
76.There was, as we have indicated a wealth of evidence before his Honour, all of which was to the effect that the mother did not pose a risk to the child.
77.Thus his Honour did not err in not making the finding which the father asserts in this ground he should have made.
Ground 6: “Denied Applicant procedural fairness, conducted the hearing in a matter that was not authorised by the Act or rules, caused significant procedural unfairness to the father”
78.These matters were argued by the father in relation to earlier grounds and there is no reason to rearticulate our conclusions about them.
79.However, part of his argument under this ground of appeal concerned the cross-examination of the family consultant. The father said his Honour unnecessarily interfered when he was cross-examining the family consultant and did not take the same approach when the solicitor for the mother was asking questions of the witness. The father said his Honour unnecessarily interfered with his cross-examination in the following ways and directed us to parts of the transcript which he said illustrated this:
a)disallowing the father from asking questions which the father said amounted to procedural unfairness (Transcript of 9 November 2011, page 53; and Transcript of 11 November 2011, pages 165, 167 and 168);
b)turning the father’s questions around to favour the mother (Transcript of 9 November 2011, page 50; and Transcript of 11 November 2011, page 164); and
c)disallowing the father from asking questions because they were submissions and not questions (Transcript of 9 November 2011, page 63), but allowing the mother’s counsel to put “submissions” to the family consultant (Transcript of 10 November 2011, pages 81 and 82).
80.The references the father took us to in the transcript demonstrate that his Honour prevented the father from asking questions about matters on which his Honour had already made a finding, putting quotations from other cases to the witness and matters which the father had already cross-examined and the witness had answered. In our view, his Honour’s disallowance of questions relating to those areas was proper.
81.The father further complained that the trial Judge “turned his questions around” when the father was cross-examining the mother, to favour the mother. Again, the father took us to pages of the transcript which he said demonstrated his Honour’s uneven approach to the parties. We do not agree that his Honour’s questions were posed so as to skew the evidence to favour the mother and to disadvantage the father. His Honour was entitled to ask questions not only in clarification of answers but to inform himself.
82.In relation to the third point, the father, again unsurprisingly, being self-represented, tended not to ask questions of the witness or put propositions but made statements or submissions to the witness, hoping, no doubt, for the witness to agree. His Honour intervened often, to indicate to the father that he had to ask questions of the witness and that the time for making submissions would come later. By contrast, although the questions and propositions put to the family consultant by the mother’s solicitor were at times long and somewhat convoluted, they did not amount to submissions.
83.Nothing in the transcripts to which we were taken demonstrates that there is any substance in these complaints by the father.
Ground 7: “Failure to allow to response to the Mother submission”
84.The father agreed that the matters to which this ground relates had been argued already in relation to another ground.
Ground 8: “Respondent not financially supported child being in her father care”
85.As the ground implies, the father complains that in the two and a half months in which the child was living with him after the mother was arrested and charged, she did not contribute financially to the child. He conceded that in that time he had not made an application for Child Support assessment.
86.There is no error demonstrated.
Ground 9: “Failure to consider Shared Parental Responsibilities Act”
87.As we have already discussed, his Honour did indeed consider the presumption of equal shared parental responsibility and found that, in the best interests of the child, it did not apply.
88.The father argued that while the child had been in his care, he had “done a good job” with her. Even if that be accepted, his Honour’s conclusion that it was not a case in which the presumption should apply was entirely within his discretion and we find no error in his reasoning or conclusion.
Ground 10: “Pursuant to order 10, respondent pose unacceptable risk to child, herself and father erred in law”
89.Order 10 made by his Honour related to the period in which the mother was subject to supervision while the child was living with her. That period was from 11 December 2011 until 11 June 2012. His Honour ordered (Order 9) that in that time the mother was to live with nominated supervisors. Order 10 provided the conditions under which those nominated as supervisors would act. It included filing an undertaking to inform various people including the mother’s treating general practitioner and the Independent Children’s Lawyer in the event that the mother failed to attend therapy or medical appointment.
90.It seems that the father’s argument is that by not requiring the mother to be supervised by professional and independent supervisors rather than members of the mother’s family, the trial Judge erred [written argument page 38]. The trial Judge carefully considered the evidence about the mother’s mental health and ordered supervision of her time with the child:
314. In the interim, having considered the expert medical evidence, I am satisfied that this can be managed by undertaking the treatment and medical interventions suggested by the family consultant and, for a period of time, that there be some supervision of the mother, not supervision to protect the child from the harm of the mother but to ensure that the mother’s mental health is able to continue its improvement and not deteriorate.
91.We find no substance in this ground of appeal.
Conclusion
92.Save for one matter, we find no merit in the father’s appeal and it will be dismissed.
93.The one matter is this; his Honour made the following order:
26. Pursuant to the powers set out in Division 12A of the Family Law Act 1975 (Cth) (“the Family Law Act”) each of the parties are restrained by injunction from commencing any parenting and/or enforcement proceedings without the leave of the court. If a party wishes to commence a proceedings [sic] under the Family Law Act, such party shall, on the filing any such application, file a copy of this interim order. The application for leave to proceed is to be heard ex parte. This injunction shall not apply in respect of any notice of appeal arising from these orders or any stay application pursuant to such appeal.
94.In Bennett v Bennett (2001) FLC 93-088, the Full Court considered an injunction made pursuant to s 68B(1) to restrain a party from instituting proceedings. In the course of their decision, the Court said:
44. Thus we are able to conclude that unimpeded access to the courts is a fundamental right, which can only be abrogated or curtailed by a statutory provision, the intent of which is, in the language of the High Court judgments in Coco, “unambiguously clear”.
95.The Court further said:
47. It seems to us that the arguments against the proposition that s 68B(1) or (2) authorise the granting of an injunction restraining the institution of proceedings without leave in relation to a child, become more compelling when regard is had to the fact that in s 118 of the Family Law Act the Parliament has clearly defined the circumstances in and terms on which the court may order that a person who has instituted proceedings shall not, without leave, institute further proceedings.
96.Division 12A does not and did not empower his Honour to make the order.
97.His Honour was therefore in error in making the injunction under the aegis of Division 12A. Counsel for the mother conceded that if the Court so found, it should discharge the order. We propose to do so. Accordingly, the appeal will be allowed to the limited extent necessary to discharge the order in question.
Application to Adduce Further Evidence
98.By way of amended application in an appeal dated 28 August 2012, the father sought leave to adduce evidence in the appeal in the form of eight documents.
99.The first is a letter dated June 2006 from a gynaecologist to the mother’s general practitioner concerning the mother’s then pregnancy. The letter contains a sentence, relied on by the father, “There is no suggestion of domestic violence to my knowledge”. The father submitted that this document, had it been before his Honour would have established that there had been no domestic violence in the relationship. This document was in evidence before his Honour. The document only shows that the doctor had no knowledge of domestic violence. It does not show that there was no domestic violence. The probative value of the document is little and, even if it were in evidence before his Honour, the likelihood of it changing his Honour’s finding is low.
100.The second is a credit card statement which shows that in April 2008 the mother purchased a wig. In the circumstances that the mother was wearing a wig when she stabbed the father, the relevance of this was said to be that it showed a level of premeditation by the mother in buying the wig years before. The document was produced under subpoena and was available in the trial before his Honour.
101.The third document appears to be a document that had been attached to an affidavit of the father sworn in August 2008. The document is a page of handwritten comments and words. The father said that it is the mother’s writing and showed that she had diminished mental state at that time. The document is undated and unsigned.
102.Document four is a page from the notes of the mother’s general practitioner showing consultations in November 2007, April and November 2008. This page had been part of a bundle of documents produced to the Court by subpoena and had been tendered as part of the bundle.
103.The fifth document is a transcription of a recorded conversation conducted between the father and the child on 23 December 2011, after the hearing before his Honour and after the orders had been made.
104.The sixth document is a certificate obtained by the child at preschool while in the father’s care. It was an exhibit before his Honour.
105.The seventh document is a record relating to the charge against the mother. It refers to the charge and her bail conditions.
106.The final document is a letter notifying the father of a determination on his child support assessment. An issue before his Honour was the mother’s assertion that the father owed in the order of $37,000 in child support. The father contended that this letter showed that his assessment had been altered which would, he said, have an impact on his liability to pay child support and would affect the arrears. The question of the arrears was not mentioned in the document. It was not available before his Honour.
107.The High Court dealt with the question of admission of further evidence in CDJ v VAJ (1998) 197 CLR 172. McHugh, Gummow and Callinan JJ said:
107.The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the subsection contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that “special grounds” or “special leave” be shown before the evidence can be adduced. Nor, in contrast to the common law position, must the motion to receive the evidence be designed to set aside the verdict at first instance. Nothing in s 93A(2), for example, prevents the respondent to the appeal from bringing a motion to adduce further evidence to support the orders made.
…
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.
…
111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
(footnotes omitted)
108.Having regard to these principles we would not be disposed to admit as further evidence the documents which are the subject of the application. Even if they were to be admitted, they would not have shown error or led to a different result.
109.The application will be dismissed.
Costs
110.As is customary we sought submissions from all parties as to costs on the appeal. The mother and the Independent Children’s Lawyer sought that their costs be paid by the father in the event the appeal was unsuccessful.
111.We are not persuaded that the circumstances justify an order for costs.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Finn and Ainslie-Wallace JJ) delivered on 1 May 2013.
Associate:
Date: 1 May 2013
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