Trafford & Cuthbert
[2024] FedCFamC1A 144
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Trafford & Cuthbert [2024] FedCFamC1A 144
Appeal from: Trafford & Cuthbert [2024] FedCFamC1F 2 Appeal number(s): NAA 28 of 2024 File number(s): BRC 11370 of 2020 Judgment of: TREE, WILLIAMS & ALTOBELLI JJ Date of judgment: 26 August 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where no final orders were made pertaining to time with the youngest child – Where the father contends there has been a miscarriage of justice by a delay in the delivery of reasons and that the reasons were infected by legal, factual, and discretionary error – No error identified – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bonnett & Bonnett [2021] FedCFamC1A 95
CDJ v VAJ(No 1) (1998) 197 CLR 172; [1998] HCA 67
Deodes & Deodes (2019) FLC 93-905; [2019] FamCAFC 97
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189
Fowles & Fowles (No 2) [2024] FedCFamC1A 115
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hsiao v Fazzari (2020) 270 CLR 588; [2020] HCA 35
Jones v Bradley [2003] NSWCA 81
Maday and Maday (1985) FLC 91-636
Manifold and Alderton (2021) FLC 94-015; [2021] FamCAFC 61
OP & TP & The Child Representative (Conduct of Counsel) (2003) 30 Fam LR 281; [2002] FamCA 1155
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Number of paragraphs: 92 Date of hearing: 30 July 2024 Place: Melbourne The Appellant: Litigant in person The Respondent: Litigant in person (did not participate) Counsel for the Independent Children's Lawyer: Ms Earl Solicitor for the Independent Children's Lawyer: Queensland Legal Aid ORDERS
NAA 28 of 2024
BRC 11370 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TRAFFORD
Appellant
AND: MS CUTHBERT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE, WILLIAMS & ALTOBELLI J
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.The Applications in an Appeal filed 20 June 2024 and 12 July 2024 are dismissed.
2.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Trafford &Cuthbert has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, WILLIAMS & ALTOBELLI JJ
By Amended Notice of Appeal filed 14 June 2024, the appellant appeals Orders 1–5, 7–10 and 20–23 of the parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 12 January 2024.
In his Summary of Argument, the appellant contends there has been a miscarriage of justice caused by the delay in delivery of the primary judge’s reasons (Trafford & Cuthbert [2024] FedCFamC1F 2 (“the reasons”)), and the reasons are infected by legal, factual, and discretionary error.
For the reasons that follow, the appeal will be dismissed.
BACKGROUND
The parties commenced cohabitation in March 2008. Their three children, X, Y, and Z, were born respectively in 2009, 2012, and 2017, hence are currently aged 15, 12, and 6.5 years.
The parties separated in May 2020, with the respondent asserting the appellant had problems with alcohol. Subsequent to separation, on 21 August 2020 the appellant filed an Initiating Application in the Federal Circuit Court of Australia (as it then was) seeking parenting orders.
In September 2020, the children spent supervised time with the appellant on three occasions at a contact centre, prior to time being terminated by the centre.
On 29 September 2020, orders were made inter alia for the parties to undertake family therapy and for the children to communicate with the appellant, at least twice per week.
On 22 February 2021, orders were made for the youngest child to spend time with the appellant for two hours each Sunday and for all children to attend family therapy. The time between the youngest child and the appellant did not occur. Following an application by the respondent to suspend that time, on 13 July 2021 orders were made increasing the youngest child’s time with the appellant to four hours each Sunday. The child did not spend time with the appellant pursuant to the orders, nor subsequent to August 2021.
On 26 July 2022, a trial of the proceedings commenced before a judge of the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).
In August 2022, after the appellant’s unsuccessful application for disqualification of the Division 2 judge, on the second day of the trial the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”), effectively aborting the part‑heard trial.
The trial commenced afresh before the primary judge in January 2023, proceeding for three days and concluding on 5 April 2023 with oral submissions.
Written reasons were delivered on 12 January 2024. The primary judge made final parenting orders in relation to X and Y, but only interim orders in relation to Z. As to the former, the orders afforded the respondent sole parental responsibility for both children, who would live with the respondent and spend time or communicate with the appellant only if they so wish.
In regards Z, there were interim parenting orders for equal shared parental responsibility. Whilst there was no formal order made as to with whom Z should live, inferentially it was the respondent, as there were orders for weekly supervised time between the appellant and Z.
APPLICATIONS IN AN APPEAL
The appellant filed two Applications in an Appeal. The first on 20 June 2024 (“the first Application in an Appeal”) and the second on 17 July 2024 (“the second Application in an Appeal”).
The first Application in an Appeal
The relief sought in the first Application in an Appeal falls within three broad categories, namely leave to file two subpoenas, leave to adduce further evidence, and a challenge to an evidentiary ruling of the primary judge about legal privilege.
As advised during the appeal hearing, the application for leave to file the two subpoenas needed to be determined prior to the substantive appeal. This is because if leave were granted, the appeal hearing would have to be adjourned to enable the return of the subpoenas. The application pertaining to the subpoenas was dismissed during the appeal hearing and the appellant was advised reasons would be given as part of the reasons of the appeal.
We address below each category of order sought.
Leave to issue subpoena
The proposed subpoena addressed to RR Company seeks production of the respondent’s phone records for the period 15 June 2019 to 16 May 2020. The appellant primarily seeks to ascertain the length of a phone call between the respondent and himself. At the hearing before the primary judge, the respondent was cross-examined about the duration of a telephone call, during which the respondent informed the appellant of her desire to separate (Transcript 24 January 2023, p.163 line 37 to p.164 line 39).
We fail to see how the duration of that phone call has any material bearing on the matters which were to be determined by the primary judge or would assist the determination of the appeal. There were no cogent submissions directed to the relevance of the respondent’s phone records for the 11-month period sought.
The second subpoena addressed to the Department of Child Safety, Seniors and Disability Services (“the Department”), seeks current information about all three children. Whilst it appears there may have been a notification in relation to the children made to the Department, the appellant failed to articulate the nature of the documentation likely to be produced in relation to the two older children, and failed to demonstrate how any documents produced by the Department would be relevant to the disposition of the appeal. It appears to be little more than a fishing expedition.
For these reasons, the appellant’s application to issue two subpoenas was dismissed.
Leave to adduce further evidence
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) confers on an appeal court a discretionary power to grant leave to receive further evidence. In CDJ v VAJ(No 1) (1998) 197 CLR 172 (“CDJ v VAJ”) at [111]–[115], the High Court of Australia considered the principles relevant to the exercise of the discretion.
First, the appellant sought to adduce additional video and audio evidence. The appellant contends (per Part D of the first Application in an Appeal, Order 2) he instructed his lawyers to submit the evidence at the hearing before the primary judge, but they did not do so. Despite this contention, the Amended Notice of Appeal does not include any grounds asserting the trial miscarried due to incompetence of counsel or legal representation: see OP & TP & The Child Representative (Conduct of Counsel) (2003) 30 Fam LR 281.
The evidence sought to be adduced was clearly available to the appellant and his legal advisers at the time of the trial. The appellant is bound by the case he ran at trial and the forensic decisions made by his counsel during the hearing before the primary judge, including cross‑examination and the tendering of exhibits. The appeal is not an opportunity for the appellant to run a case differently from the one he ran at first instance before the primary judge: see Hsiao v Fazzari (2020) 270 CLR 588 (“Hsiao”) at [53].
Secondly, the appellant seeks leave to tender in the appeal a report from the respondent’s psychologist, which was not tendered in the parenting proceedings before the primary judge, nor was it annexed to his affidavit in support of the Application in an Appeal or included in the appeal book. He contended the report was relevant to the appeal but did not precisely articulate the asserted relevance. We agree with the respondent’s submission, that the report of the respondent’s psychologist about the respondent’s continuing emotional difficulties arising from the ongoing litigation, does nothing to support the appellant’s case nor assist in the appeal.
Thirdly, the appellant seeks orders that the transcript of proceedings of the trial in Division 2 be filed electronically as a separate document.
An examination of the transcript before the primary judge demonstrates neither party sought to place into evidence any part of the transcript of the proceedings in Division 2. The primary judge commenced the hearing before him as a fresh trial, and what happened in any prior proceeding was not relevant to his Honour’s determination. The appellant cannot now seek to claim his legal representatives should have done so: see Hsiao. We do not accept any failure to tender the transcript of the proceedings in Division 2 could be considered material to the determination of the primary judge or that there would have been a different outcome, had the transcript been tendered.
As the High Court explained in CDJ v VAJ, the point of further evidence on appeal is to demonstrate error, bolster the reasons under attack, or provide material for any re-exercise of discretion. We are unable to see how the proposed material does so. Generally speaking, material that was available to be used at the hearing, but was not, should not be readily admitted into an appeal.
For these reasons, the appellant’s application for leave to adduce further evidence is refused.
Challenge to an evidentiary ruling
The appellant seeks to reagitate an evidentiary ruling of the primary judge, about whether the respondent had engaged with a lawyer, prior to separating from the appellant in May 2020.
During the hearing before the primary judge, the respondent was cross-examined about a statement in her affidavit filed 20 July 2022 where she deposed:
[95]I gathered the courage to leave on 15 May 2020 and I vacated the family home with the children and first resided with my parents at [Suburb QQ].
[96]I telephoned [Mr Trafford] later that day and spoke to him about how important it was for both of us to have some space and to think about the best way of moving forward, amicably. It was quite a lengthy conversation as I recall discussing the best way to manage with situation [sic] with my Solicitor before leaving.
During cross-examination in the trial before the primary judge, counsel for the appellant asked the respondent to disclose the discussion with her solicitor, as he asserted the respondent’s above statements amounted to a waiver of legal professional privilege. The respondent’s counsel objected, and the primary judge ruled the question was impermissible (Transcript 24 January 2023, p.166 lines 16, 20–21).
We agree with counsel for the respondent’s submission that whether or not the respondent engaged a lawyer prior to choosing to separate from the appellant in May 2020, it is immaterial and irrelevant to any matter to be determined by the learned primary judge. The appellant asserted this issue was relevant to Ground 8, but failed to explain how that was so, and we cannot discern it ourselves.
For the reasons outlined above, the application pertaining to the evidentiary ruling is dismissed.
The second Application in an Appeal
In the second Application in an Appeal, the appellant seeks this Court listen to audio recordings and view videos which were transcribed and tendered with the original files as Exhibit 2 and Exhibit 7 in the proceedings before the primary judge. Exhibit 2 is a transcript of audio recorded at changeover dated 22 August 2021 and a USB containing the audio recording. Exhibit 7 comprises video recordings of FaceTime calls between the appellant and the children on four occasions: 3 May 2020, 25 May 2020, 5 June 2020, and 6 June 2020. There was no objection by the Independent Children’s Lawyer (“the ICL”) to this application.
The appellant did not persuade us that listening to the recordings or viewing the videos, as distinct from reading the transcript, would demonstrate the orders under appeal were erroneous. The second Application in an Appeal will be dismissed.
THE APPEAL
Although at Part D, paragraph 8 of the Amended Notice of Appeal, the appellant appealed Orders 1–5, 7–10 and 20–23 of the orders made on 12 January 2024, he did not advance any argument or submission in his Summary of Argument nor during the appeal hearing relevant to Orders 3–5 and 20–23.
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
We now turn to the grounds of appeal referred to in the Amended Notice of Appeal filed 14 June 2024.
Ground 1 - There has been a miscarriage of justice by virtue of the delay in the provision of the judgment of 12 January 2024 being a period of almost twelve months since the close of the evidence in the matter (on 25 January 2023).
Under this ground, the appellant complains about the length of time taken by the primary judge to deliver reasons, and as a result, asserts a miscarriage of justice. The appellant initially contended there was a delay of twelve months between the conclusion of the trial and the reasons. We agree that is the timeframe between the conclusion of final evidence (25 January 2023) and the date of reasons (12 January 2024), but submissions concluded on 5 April 2023, with reasons published some nine months later.
The transcript of 25 January 2023, being the final day of evidence, indicates the delay in final submissions was due to the unavailability of counsel, and not because of any delay on the part of the primary judge (Transcript 25 January 2023, p.373 line 29 to p.376 line 46).
Generally, delay in delivery of a decision is not, of itself, indicative of error, but will lead an appeal court to scrutinise the judgment more carefully: see Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568 at [69]. At [71]–[72], the Full Court of the Federal Court stated that where there has been a significant delay:
71.… a more comprehensive statement of the relevant evidence that would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that did the delay has not affected the decision.
72.… it is incumbent upon a trial judge to inform the parties of the reasons why the evidence of the particular witness has been rejected. It is necessary for the trial judge to say why he or she prefers the evidence of one witness over the evidence of other witnesses.
(Citation omitted)
In Manifold and Alderton (2012) FLC 94-015 at [37] the Full Court held:
37.… the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons for her conclusions.
The appellant contended the significant period between conclusion of evidence and provision of reasons “raises doubt over the ability to recall the matters raised at trial”, although he did concede the Court had obtained transcripts of the evidence of the two experts, Ms E (social worker) and Ms D (Family Report writer).
At [32] of the reasons, the primary judge set out a comprehensive procedural and therapeutic history. The appellant did not challenge any aspects of the history as recorded by the primary judge. At [34], the primary judge referred to three issues he proposed to deal with, before considering the proposals of each party within the context of the statutory considerations. At [35] his Honour addressed the current emotional state of each individual child, at [36] he referred to the evidence of Ms E, including her report and evidence during cross-examination, and at [39]–[42] the primary judge conducted a detailed analysis of the Family Report of Ms D and her recommendations. The appellant did not seek to specifically challenge any of the observations or findings in these paragraphs, nor identify any factual error on the part of the primary judge arising from an asserted possible failure to accurately recall evidence.
Indeed, at trial there was little factual dispute between the parties, other than the nature of the relationship between the appellant and the children at separation, and why it had deteriorated. The focus of the trial, from the appellant’s perspective was the cause of that deterioration, the children’s rejection of him, and how best to re-establish a future relationship with them.
The most significant factual dispute referred to in the reasons was about the conduct of each party at the changeover incident on 22 August 2021. The incident is referred to by the primary judge at [28]. Exhibit 2 in the substantive proceedings is a transcript of a recording of the incident, which the primary judge relied upon for his observations at [28]. Ultimately, his Honour concluded at [47], [48] and [52] both parties were responsible for the ongoing parental conflict. The primary judge did not make findings about the respective credibility of the appellant and the respondent, nor rely to any significant extent on the veracity of their evidence or reject the evidence of one of the parties and prefer the other.
In this context, rather than relying on the evidence of the parties, the primary judge relied on the evidence of the professional witnesses, all of whom swore affidavits annexing their reports, which were readily available to the primary judge at the time of preparation of the reasons. Additionally, the primary judge was undoubtedly assisted by the transcript of evidence of the two professional witnesses who were cross-examined, Ms E and Ms D. There can be no issue about the ability of the primary judge to recall the evidence of the experts relied upon. His Honour was also undoubtedly assisted by the transcript of the recording of the changeover incident on 22 August 2021.
The appellant did not otherwise identify, explain, or particularise the asserted miscarriage of justice and we are satisfied the reasons of the primary judge withstand scrutiny.
In this case, whilst a nine-month delay between final submissions and the giving of reasons is most regrettable, undesirable, and undoubtedly created uncertainty for the children, it is not so egregious as to amount to a miscarriage of justice.
This ground must fail.
Ground 2 - The learned judge erred in law in his consideration of the question of parental responsibility in so far as the learned judge failed to consider section 61DAA in the context of the facts of this case.
Ground 3 - The learned judge’s reasons concerning parental responsibility vested in paragraphs 61–63 of the judgment are inadequate.
It is convenient to consider these grounds together, as both address parental responsibility for the children.
The appellant’s complaint in this respect is that the primary judge erred in law by failing to consider s 61DA of the Family Law Act 1975 (Cth) (“the Act”) (which he erroneously referred to as s 61DAA) and did not provide adequate reasons for why parental responsibility should vest in the respondent.
The obligation of a primary judge is to provide adequate reasons, but adequacy depends on the circumstances of the case and brief reasons are not necessarily inadequate.
The principles as to what constitutes adequate reasons are well settled. In Fowles & Fowles (No 2) [2024] FedCFamC1A 115, the Full Court at [163] and [164] said:
163.... In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court adopted the principles set out in Sun Alliance Insurance Ltd v Massoud (1989) VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:—
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
164.In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “as sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
At [61] and [62] of the reasons, the primary judge refers to the statutory presumption of equal shared parental responsibility, although without specific reference to section 61DA, and of his awareness of the need to establish a principled reason to depart from the presumption.
The primary position of each of the parties at the trial, and ultimately adopted by the primary judge, was for parental responsibility to be vested in the party with whom the children primarily reside.
In his Outline of Case Document filed 25 July 2022, which was relied upon before the primary judge, the appellant sought an order for sole parental responsibility, submitted the presumption of equal shared parental responsibility would not apply or would be rebutted, and that it was in the best interests of the children for the appellant to have sole parental responsibility. Similarly, the respondent also sought sole parental responsibility, as detailed in her Outline of Case Document filed 25 July 2022 relied upon before the primary judge.
At [63] of the reasons, the primary judge concurs with the position of the parties and refers to the lack of communication between them, and at [52] refers to the ongoing parental conflict, lack of mutual respect and trust between them. All identified considerations are relevant to the determination of parental responsibility and when the reasons are read as a whole, it is apparent the primary judge identified and considered matters relevant to his discretion: see Bonnett & Bonnett [2021] FedCFamC1A 95.
The appellant submitted the primary judge found he was not a risk of harm, and therefore the statutory presumption cannot be rebutted in the face of such a finding. At [49] of the reasons, the primary judge found the children were not at risk in the appellant’s care as a result of his current use of alcohol. Notwithstanding the limited finding of the primary judge, it was open to him to depart from the statutory presumption, because he was satisfied that it would not otherwise be in the best interests of the children for the children’s parents to have equal shared parental responsibility (s 61DA(4)).
Additionally, the appellant complains of inconsistency between the orders for parental responsibility for all three children. This may be explained because the order for parental responsibility for the youngest child is interim, with ongoing time between the child and the appellant, and the order for parental responsibility for the two older children is final, with no orders providing for ongoing time.
The appellant has failed to demonstrate an error of law arising from the primary judge’s consideration of s 61DA and although the reasons are brief, they are adequate to explain the reasoning of the primary judge.
These grounds must fail.
Ground 4 - The finding made by the learned judge at paragraph 68 of the judgment that the relationship between the appellant and [Y] was “worth saving” is inconsistent with the orders made in relation to the relationship between the appellant and [Y].
It may be doubted that the challenge made by this ground properly engages with House v The King. In any event, at [68] of the reasons, the primary judge does not make the finding as asserted by the appellant. Rather, his Honour referred to an observation of Ms D, made at paragraph 156 of her Family Report dated 16 December 2022. The opinion of Ms D is but one piece of the evidence to be considered in reaching a final determination. In arriving at the final orders made, the primary judge also considered, as required by the legislation, the wishes expressed by Y at [50] and [54].
At [72] of the reasons, the primary judge expressed very cautious optimism that orders for the youngest child to spend time with the appellant may cause Y to seek some future time with the appellant. Ultimately, the final orders impose an obligation on the respondent to facilitate time between the two eldest children and the appellant, should the children express a wish to do so. Whilst the final orders pertaining to the two eldest children are conservative, and not what the appellant would have wanted, they leave the door open to future time between the children and the appellant.
There is no appealable error demonstrated and this ground must fail.
Ground 5 - The findings made by the learned trial judge at paragraphs 50 and 59 of the judgment about the capacity of the appellant to meet the children’s emotional needs was not open on the evidence before him and his findings in that regard lead him into error.
Under this ground the appellant complains about findings of the primary judge at [50] and [59].
In Deodes & Deodes (2019) FLC 93-905 at [44] the Full Court stated the following applicable principles:
44.… An appeal court should not interfere with findings of fact which were open on the evidence is well established: Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513. So, too, is the recognition that appellate judges are in a “permanent position of disadvantage as against the trial judge” in assessing the evidence and credibility of witnesses: Fox v Percy (2003) 214 CLR 118 at 142-143.
The onus is on the appellant to demonstrate that the findings made were not reasonably open to the Court. In this case, the paragraphs complained about themselves refer to the evidence relied upon by the primary judge in reaching his conclusion, including a reference to observations of Ms D, and observations and assessment of the appellant undertaken by the primary judge. There is no challenge to the primary judge’s impressions of the appellant, which he necessarily gained from his observations during the trial.
The appellant does not demonstrate the findings were not reasonably open to the primary judge and this ground must fail.
Ground 6 - The learned judge failed, or gave insufficient reasons, having found at paragraph 23 of the judgment that at separation the children had normal interactions with the appellant, as to why that relationship had since deteriorated and in that regard failed to give proper consideration to section 60CC(3)(b) of the Family Law Act 1975 (Cth).
The statement of the primary judge at [23] does not amount to a finding, rather it is an observation by the primary judge that the videos relied upon by the appellant reveals “some fairly normal interaction between the children and [the appellant]”.
The complaint about the primary judge’s consideration of s 60CC(3)(b) of the Act is misguided. The obligation is to consider the nature of the relationship of the child with a parent. There is no statutory obligation to consider why a relationship between a parent and child has deteriorated post-separation.
At [24] and [25] of the reasons, the primary judge identified the lack of interaction between the children and the appellant post-separation, and attempts to improve that relationship, as the focus of the case: at [35] he considered the emotional state of each of the children; and at [32] he embarked upon a comprehensive review of the procedural and therapeutic history of the family from September 2020 until November 2022. Further, at [36]–[38] the primary judge considered the attempts at reunification between the appellant and the youngest child, and at [40]–[42] considered the analysis and recommendations of Ms D.
Contrary to the appellant’s complaints, the reasons demonstrate the primary judge did consider the post-separation deterioration of the appellant’s relationship with the children, in the context of no physical time between the appellant and the children since September 2020, and as he was required to do, considered the nature of the relationship between the appellant and the children.
As to the complaint about inadequacy of reasons, the reasons are clear and sufficient to demonstrate the conclusions reached by the primary judge at [55] about the lack of relationship between the children, the appellant, and the extended paternal family.
There is no merit in the appellant’s complaints and this ground must fail.
Ground 7 - The findings in relation to parental conflict at paragraphs 47, 48 and 52 were not available on the evidence given:
(a) The parties separated in May 2020;
(b) [X] and [Y] spent no time with the applicant post September 2020;
(c) The McDonalds incident to which the learned judge made findings occurred in August 2021; and
(d) The parties have had limited interactions with other another since May 2020. And the findings made in that regard are an error of law.
Under this ground, the appellant contends the findings of the primary judge about parental conflict are not available on the evidence. This ground is similar to Ground 5, although it is difficult to understand the precise complaint.
The transcript of the video referred to at [28], the further observations at [29] and the reference to the expert opinions at [40(e)] of the reasons, clearly underpin the observations made by the primary judge at [47], [48] and [52].
The appellant did not show how the asserted erroneous findings affected the ultimate determination in any material manner, or that they were not reasonably open to the primary judge.
There is no merit in this ground, and it must fail.
Ground 8 – Miscarriage of justice and procedural fairness
The case management in the proceedings have been torturous and consist of significant delays in case management from the filing of the Initiating Application on 20 August 2020. It consists of the initial application, part trial, recusal dismissal, failure to complete the trial after recusal, and transfer on the grounds of complexity, has resulted in a miscarriage of justice and procedural fairness to the parties. It is relevant to consider the transcript and management of the matter Division 2, before being kicked down the road to Division 1.
The appellant’s complaint about delay extends to the length and “torturous” case management of the proceedings of the first trial before a judge in Division 2, and the circumstances of the subsequent transfer of the proceedings to Division 1. On day two of the first trial, after the appellant’s unsuccessful application for disqualification of the primary judge, the proceedings were transferred to Division 1, ostensibly due to complexity. The appellant’s complaints about delay caused by the abandonment of the first trial on day two are justified, and the failure to continue with the trial did nothing to advance the interests of the children, particularly amidst allegations of alienation and estrangement.
We must strongly decry the transfer of the matter between courts mid-trial; it demonstrates almost complete disregard for the parties. If the matter were sufficiently complex to warrant transfer to Division 1, then it inevitably would have been apparent well prior to the second day of the trial.
However, the complaint does not arise from any of the appealed orders and this ground must fail.
Ground 9 - Inadequate weight to cross-examination – mother’s risk
The learned judge failed to give adequate weight to the parties’ cross-examination and provide sufficient and detailed reasons, particularly regarding the risks of emotional harm and risk as per the Family Law Act 1975 (Cth).
As to the complaint about weight under this ground, the difficulty of challenging a primary judge’s attribution of weight on appeal is well known. As stated in Gronow & Gronow (1979) 144 CLR 513 at 521 per Stephen J:
…An appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight.
The weight or importance given to evidence is a matter quintessentially for the primary judge, unless an appellant can show the primary judge was plainly wrong; see CDJ v VAJ at 230–231 per Kirby J.
The appellant’s complaint is general and unspecified, and he did not demonstrate nor attempt to address how the primary judge was “plainly wrong”.
The complaint about adequacy of reasons pertaining to risk of emotional harm is vague and not particularised. The reasons, taken as a whole, and in particular at [46]–[49] adequately explain the basis for the findings and observations pertaining to risk.
This ground must fail.
Outcome
No ground of appeal enjoys merit and hence the appeal will be dismissed.
COSTS
The appellant was self-represented, did not file a Schedule of Costs and did not initially seek any orders for costs. After the conclusion of the appeal hearing, the appellant sought leave to file a Schedule of Costs detailing the costs of obtaining the transcript, which he sought if the appeal were successful.
Although the ICL filed a Schedule of Costs, counsel did not seek any orders for costs. The respondent did not file a Schedule of Costs and did not attend the appeal hearing.
We will grant leave to the appellant to file the Schedule of Costs, however, because the appeal is wholly unsuccessful, we will not make any costs orders.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Williams & Altobelli. Associate:
Dated: 26 August 2024
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