VARGAS & CLARKE
[2016] FamCAFC 6
•1 February 2016
FAMILY COURT OF AUSTRALIA
| VARGAS & CLARKE | [2016] FamCAFC 6 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant appeals against orders dismissing his application for a variation of final parenting orders – Where the appellant asserted the findings and final orders made by the judge who heard the initial trial were wrong and thus the trial judge here erred by relying on those findings – Where the appellant did not appeal against the final orders and it is not open to the appellant to challenge those final orders in this appeal – Where the appellant asserted that the rule in Rice and Asplund (1979) FLC 90-725 did not apply because of what the judge who made the final orders said – Where the appellant misunderstood what was said by that judge and the effect of that – Where the rule in Rice and Asplund still applies – Where there was no error by the trial judge – Appeal dismissed. FAMILY LAW – APPLICATIONS IN AN APPEAL – Where the father sought leave to issue two subpoenas – Where the material sought to be subpoenaed was not relevant to the appeal – Where the father sought to adduce further evidence consisting of records of attendances upon medical practitioners and property searches relating to the trial judge, Principal Registrar and other women involved in the proceedings – Where the material was not relevant to the appeal – Where the father sought to present a letter allegedly removed from the court file and material subpoenaed from the Department of Education and Training – Where the material was not relevant to the appeal – Applications dismissed. FAMILY LAW – COSTS – Where the respondent mother sought an order for costs – Where no order for costs is made. |
| Family Law Act 1975 (Cth) – s 117(1) |
| Rice and Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Vargas |
| RESPONDENT: | Ms Clarke |
| FILE NUMBER: | NA | 36 | of | 2015 |
| APPEAL NUMBER: | BRC | 10951 | of | 2011 |
| DATE DELIVERED:: | 1 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 1 February 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 April 2015 |
| LOWER COURT MNC: | [2015] FamCA 292 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Slade Jones |
| SOLICITOR FOR THE RESPONDENT: | WP Lawyers |
Orders
The Applications in an Appeal filed by the appellant father on 5 August 2015 and 11 December 2015 be dismissed.
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vargas & Clarke 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 36 of 2015
File Number: BRC 10951 of 2011
| Mr Vargas |
Appellant
And
| Ms Clarke |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Strickland J
Introduction
By Notice of Appeal filed on 22 May 2015, Mr Vargas (“the father”) appeals against orders made by Hogan J on 24 April 2015.
In summary, the orders dismissed the father’s Initiating Application seeking a variation of final parenting orders made on 28 February 2014 and dismissed the father’s Application in a Case seeking to review a decision of the Principal Registrar dismissing the father’s application for interim parenting orders. Orders were also made for submissions to be prepared by the parties in relation to the matter of costs.
The appeal is opposed by Ms Clarke (“the mother”).
By Application in an Appeal and supporting affidavit filed on 5 August 2015, the father seeks leave to issue two subpoenas in the proceedings.
By further Application in an Appeal and supporting affidavit filed on 11 December 2015, the father seeks leave to adduce further evidence annexed to his affidavit, and seeks further orders which I will come to in a moment. The further evidence comprises a number of electronic health records relating to when the father has taken the child to see a medical practitioner and when the mother has taken the child to see a medical practitioner. It also comprises a series of property search records relating to the trial judge, the Principal Registrar and other women involved in these proceedings.
Apart from seeking leave to adduce that further evidence there were two further orders sought in that application. First, leave was sought to present a letter addressed to the Family Court of Australia from a service provider, D Organisation, which allegedly had been removed from the file by a case co-ordinator. Secondly, leave was sought for material subpoenaed from the Department of Education and Training to be entered into evidence.
Brief background of the parties
The parties began a relationship in or about 2009 and commenced cohabitation in September 2010.
There is one child of the relationship, C (“the child”), who was born in 2011 and is now aged four years.
The mother has a child by another relationship, S, who was born in 2006 and is now aged nine years.
In July 2011, the mother alleged that the father had assaulted and injured her.
The parties separated in October 2011.
On 28 February 2014, following a trial, Bell J made final parenting orders and delivered reasons for judgment providing for the mother to have sole parental responsibility for the child and for the child to live with the mother and spend supervised time with the father on at least a fortnightly basis.
Approximately six months later, namely on 15 August 2014, the father filed an Initiating Application seeking interim and final parenting orders. In particular, the father sought that the parties have equal shared parental responsibility and that the child spend unsupervised time with the father on a gradually increasing basis.
On 2 October 2014 the father’s application for interim parenting orders was dismissed by the Principal Registrar. Approximately 87 days after that order was made, and thus substantially out of time, the father filed an Application in a Case seeking a review of that decision. That application was filed on 31 December 2014.
The mother filed an Application in a Case on 7 January 2015 seeking that the father’s Initiating Application filed on 15 August 2014 be dismissed.
I also mention that on 1 December 2015 May J adjourned the hearing of the father’s Application in an Appeal filed on 5 August 2015 to be heard by this Full Court. Her Honour also granted the father leave to file an Application in an Appeal and accompanying affidavit seeking to adduce further evidence and the father took up that opportunity and he filed his application in that regard, as I have already identified, on 11 December 2015.
The Applications in an Appeal
Turning first to the applications in an appeal. In relation to the application filed on 5 August 2015, leave is sought to issue two subpoenas, one to the New South Wales Police and one to a hospital. The father advised the Court today that the material sought to be subpoenaed is relevant to the findings and ultimate orders made by Bell J. It seems, and it became readily apparent during the hearing today, and also from the father’s written submissions, that the father was seeking to challenge Bell J’s findings and orders by presenting further evidence to us that his Honour could have or should have taken into account, and thereby, challenge the findings and orders made by Hogan J. As we explained to the father, it was not possible for him to succeed in this appeal by challenging the findings and orders made by Bell J. The father, albeit he may have had other material that he could have presented to Bell J, is stuck with the findings made by his Honour given that there was no appeal by the father from his Honour’s orders. Thus, the material sought to be subpoenaed cannot be relevant to the appeal before the Court today, and I would dismiss the Application in an Appeal filed on 5 August 2015.
In relation to the Application in an Appeal filed on 11 December 2015, I have briefly identified the further evidence that the father seeks to adduce. Annexed to his affidavit in support of his application there are three sets of documents, the first two sets are records of attendances upon medical practitioners, one set being the attendances whereby the father has taken the child to medical practitioners and the other set recording the times when the mother has taken the child to medical practitioners. However, again, as was explained to the father by this Court today, that material can only be relevant to the findings and orders made by Bell J. Indeed the father conceded that that was the purpose of presenting that material, and just as I have said in relation to the earlier application to issue subpoenas, those documents cannot be relevant to the appeal being heard today.
The third set of documents annexed to the father’s affidavit are, as I have indicated, a series of property search records relating to the trial judge, the Principal Registrar and other women involved in these proceedings. The father explained the purpose of presenting those records is to support an allegation that he makes of bias against him because he is a male. He seeks to adduce those records to show that there is no, and these are my words, male influence in the lives of the trial judge, the Principal Registrar and the other women involved in the proceedings, and that indicates they are biased against him. There is no basis for admitting that evidence, it is offensive and irrelevant to these proceedings.
In relation to the application to present the letter allegedly removed from the file, as was clarified with the father that letter related to photographs which were available in the proceedings before Bell J, and thus, they fall into the same category as the other documents to which I’ve referred, namely, that what the father is seeking to do is to in effect challenge the findings and ultimate orders made by Bell J and that is not something that is open to him in this appeal. To repeat, he is stuck with his Honour’s findings and orders.
The third order sought in that application must also fail for the same reasons. The material sought to be presented was subpoenaed by the father in the proceedings before Bell J, and it was clarified by him today that that material was not in fact tendered into evidence before his Honour. Again though, the purpose of that evidence being now adduced is to challenge the findings of Bell J, and I need not repeat what I have said about that and how that is not something that the father can pursue in this appeal.
Thus, I would also dismiss the Application in an Appeal filed on 11 December 2015.
The Appeal
Turning to the appeal itself, there are five grounds of appeal set out in the father’s Notice of Appeal, and they are as follows:
1.Justice Hogan failed to take into account significant subpoenaed evidence, and the actions of Family Court service providers in relation to them making ‘Mandatory’ reports of Abuse to the child [C], after the February hearing. Also further Subpoenaed evidence of the Mother’s long term degrading of the Father to the child [C]. Of which the current orders are based on the opposite with no evidence what so ever, only allegation supported by a system deeply perverted with bias.
2.Juctice (sic) Hogan unjustly elected not to recognise the expressed instructions of Trial Judge, Justice Bell, and my compliance with the same. Rather relying on what suited the Mother irrespective of what is fact.
3.I have carried out the instructions that were advised by His Honour, using the words ‘ I strongly advise’ which included the statement ‘ the full court is of the view that supervised access is not in the best interest of anyone’.
4.The substantial injustice of the use allegation and bias, rather than that of Subpoenaed factual evidence is completely unreasonable.
5.The findings of Justice Bell relied upon by Justice Hogan are absurd and in complete contradiction of the Subpoenaed evidence. This was further supported by Subpoenaed evidence of which Justice Hogan choose not to rely upon as it benefitted the Father.
As is required, the father filed a Summary of Argument on 25 September 2015 and that Summary of Argument is before the court today.
The father has conducted these proceedings without legal representation and unfortunately both the grounds of appeal and the written summary of argument are difficult to follow and difficult to understand. Thus, today we have sought to clarify and identify with the father the particular complaints that he seeks to raise in this appeal, and it readily became apparent that they were much the same as what her Honour set out in [34] of her reasons for judgment and being, as her Honour described, the father’s submissions to her.
There are three principal complaints, the first being that the father has now attended to those matters that Bell J identified in his reasons as being necessary for the father to undertake, and his application for different parenting orders was nothing more than taking up the invitation expressed by Bell J to do so. The second principal complaint is in fact related to the first, in that the father says that the rule espoused in Rice and Asplund (1979) FLC 90-725 does not apply to these proceedings because he was doing nothing more than taking up the invitation expressed by Bell J to bring those proceedings.
The third principal complaint is in effect a complaint that Bell J got it wrong, and therefore the trial judge got it wrong because her Honour relied on the findings made by Bell J. In effect, that is similar to the reason for the father seeking to lead the further evidence, namely, his understanding was that if he could successfully challenge the findings made by Bell J then that would mean that he would be successful in this appeal against the orders made by Hogan J.
I will address that third principal complaint first, and I need say nothing more than in effect repeat what I have said in addressing the father’s applications in an appeal, namely, that it is not open to the father in this appeal to seek to challenge the findings made by Bell J and on that basis persuade us that the trial judge was in error.
In relation to the first principal complaint, certainly Bell J said this at [88] of his reasons for judgment (and quoted in [35] of the reasons for judgment of the trial judge):
I note that permanent supervision according to the Full Court, is not in the best interests of anybody. But in this case, the applicant has not endeavoured to comply with suggestions of experts to seek help. Should he carry out such suggestions and seek help, the onus is upon him to make an application for unsupervised contact with the child.
I of course note, as the trial judge did, that the father’s application before her Honour was far wider than seeking unsupervised contact with the child, but that is neither here nor there at this point. It is plain that the father has misunderstood not only what Bell J said in that paragraph, but also the effect of what his Honour said. I accept that the father did not appeal against the orders made by Bell J and that he brought the application that he did before the trial judge as a result of that misunderstanding.
It is not the case that Rice and Asplund does not apply because of what Bell J said, and how the trial judge dealt with this issue is amply set out in [39] – [54], inclusive, of her Honour’s reasons for judgment; namely:
39.The father’s evidence establishes that, since the February 2014 Order was made, he has:
a)completed a two hour Triple P Parenting Program - on 15 April 2014; and
b)completed a Parenting Orders Program offered by [D Organisation] – on 14 April 2014; and
c)started seeing Mr [DD], a psychologist – on 7 August 2014.
40.Mr [DD’s] evidence establishes the following:
a)the father had attended four appointments: on 31 July 2014, 7 August 2014, 21 August 2014 and 22 September 2014; and
b)the father had appointments booked for 20 October 2014 and 3 November 2014; and
c)the father self-referred to him, reported he was engaged in proceedings relating to the child and provided a copy of reports including that prepared by Dr [F] and a Family Report by Ms [E].
41.No specific mention is made of the report prepared by Dr [P] (a clinical psychologist and clinical neuropsychologist) or the Reasons for Judgment.
42.The father submits that, as he has done the very things Bell J identified as necessary and in respect of which he had been deficient at the trial in February 2014, he has established a sufficient change of circumstance to persuade the Court that it is in [the child’s] best interests to permit the August 2014 Initiating Application to be determined after another final hearing.
43.Whilst Mr [DD] expressed the opinion that the father does not pose a risk to [the child], there is no evidence from him to suggest the father had addressed his underlying issues, identified and found by Bell J, as summarised in paragraph [33] above.
44.In fact, there is nothing to suggest Mr [DD] has seen a copy of his Honour’s Reasons for Judgment or a copy of Dr [P’s] report (a document commissioned by the father). The extent of his evidence – exclusive of the opinion that he does not think supervised ‘contact’ is required - is that the father had attended sessions with him on a “regular basis” and does not pose a risk to the child.
45.Mr [DD] provides no evidence to suggest that the father has, via engagement with him, addressed those issues identified by Dr [P] and included within the February 2013 report’s recommendations: that is, there is no evidence that the father has:
a)addressed his difficulties with conflict management; and/or
b)engaged in work around increased or improved communication skills when in conflict; and/or
c)addressed the difficulties identified in the manner in which he resolves conflict; and/or
d)been assisted to adjust to and cope with the situation involving [the child].
46.Additionally, there is no evidence to suggest that participation in the courses and therapy with Mr [DD] has caused the father to gain insight into those of his behaviours toward the child against which – for the reasons expressed in his Honour’s Reasons for Judgment – the Orders made by Bell J were intended to guard and insulate [the child].
47.Mere attendance at parenting or other courses does not, of itself, establish that the father has developed the insight into his behaviours toward [the child] or that he has recognised the need not to expose the child to the harm Bell J found exposure to his father’s actions caused and would be likely to cause the child or that that there has been a change to the father’s underlying attitude toward the child, his parenting of him, his attitude to the mother’s care of him ([the child]) or his (the father’s) interaction with the mother.
48.On the evidence proffered by the father, there is little – if any – likelihood of orders being varied in a significant way as a result of a new hearing. I consider that, without evidence establishing a change of attitude and approach by the father to parenting the child and/or the development of insight into the adverse effects on [the child] of exposure to his parenting, the position remains as it was at the time of the February 2014 trial.
49.I also consider that it is more likely than not that a renewal of litigation between his parents, undertaken so soon after the completion of a five day trial, is highly likely to cause [the child] significant disruption, even if only indirectly via the impact on his primary care provider of further involvement in such a process. Given my assessment of the lack of likelihood of significant variation to the existing order, such disruption is unlikely to be outweighed by any benefit.
50.The reality is that the father’s Initiating Application and Application in a Case seek to do far more than simply remove the imposition of supervision over his time with [the child]. Rather, he seeks orders which, if made, would see [the child] living in his care for five nights per fortnight within a two month time frame. As he did before Bell J, he seeks an order for equal shared parental responsibility.
51.As outlined earlier, there is no evidence to suggest the father has addressed his difficulties in managing conflict, especially when under stress. He clearly continues to assert that [the child] is at risk of physical harm in the mother’s care – in the same way he did before Bell J. None of the matters relied upon by Bell J as requiring the imposition of supervision to safeguard the child from harm appear to have disappeared: the father appears as convinced about harm to [the child] whilst in the mother’s care as he clearly was before Bell J. Such presentation suggests it is more likely than not that he will, in the future, behave toward [the child] in the same way as found and discussed by Bell J.
52.I am not persuaded that the circumstances outlined by the father in the material he relies upon are such:
a)as to require the Court, acting in [the child ’s] best interests, to consider afresh how his “welfare” should best be served;
b)that the Court is left in no doubt that it is necessary to re-litigate the parenting issues – previously determined by Bell J in February 2014 – asserted to be in dispute between the parties;
c)that, if taken into account, there is a real likelihood that a change to the existing parenting order may follow;
d)that [the child’s] best interests are likely to be served by further litigation on matters already decided upon and the subject of the existing parenting order.
53.I am not persuaded that the evidence relied on by the father establishes that circumstances have changed so significantly as to justify the parties embarking on another hearing at which issues substantially the same as those previously ventilated before and considered by Bell J will be re-litigated.
54.I am not persuaded that the evidence the father relies upon establishes such a sufficient change to the circumstances considered by Bell J as to justify a conclusion that embarking on a fresh hearing in relation to parenting orders for [the child] is something in that child’s best interests. His best interests are better served by not being the subject of further litigation than by permitting the current application for parenting orders to continue.
I am not persuaded that her Honour has erred in dealing with the application before her. As her Honour explains, it is one thing to undertake parenting courses but quite a different thing to establish that that provides the required change in circumstances to look afresh at the parenting orders, and I highlight in that regard what her Honour said in [42], [43], [45] and [46], [47] and [48] of her reasons.
There being no error by her Honour, I would dismiss the appeal, but before I conclude I need to mention of course the other application that was before her Honour. What I have said so far relates specifically to the reasons provided by her Honour in dismissing the Initiating Application, and as for the Application for Review of the 2 October 2014 order I refer to what her Honour said at [57] of her reasons for judgment, namely, that her Honour was not persuaded that the interests of justice required the exercise of discretion in favour of extending time in relation to that application, and on that basis her Honour dismissed that application. Again, I am not persuaded her Honour has committed any error in making that order.
Murphy J
I agree that each of the Applications in an Appeal should be dismissed and also that the appeal should be dismissed. I agree with the presiding judge’s reasons in each respect.
Kent J
I agree with the orders proposed and the reasons given by Strickland J.
Costs
We now have an application for costs on behalf of the mother. The application is opposed by the father.
In the circumstances we are not disposed to make an order for costs, the primary position under s 117(1) of the Family Law Act 1975 (Cth) applies and each party will bear their own costs.
I certify that the preceding Thirty Seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 1 February 2016
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