WARING & PENRY - [2018] FamCAFC 186

FAMILY COURT OF AUSTRALIA

WARING & PENRY

[2018] FamCAFC 186

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the father filed an application to adduce further evidence – where the application was heard in conjunction with the substantive appeal – where the further evidence did not meet any of the criteria for admission of further evidence on appeal by reference to the principles identified in CDJ v VAJ (1998) 197 CLR 172 – application dismissed.

FAMILY LAW – APPEAL – PARENTING – CONSENT ORDERS – where the father sought to appeal final parenting orders made by consent – where the father contended that he “felt under extreme duress” at the time of consenting to the parenting orders – where nothing contained in the transcript of proceedings demonstrated anything to constitute duress on the part of the primary judge and it was not contended any other party was responsible – appeal dismissed – no order as to costs.

Family Law Act 1975 (Cth) ss 68L, 94AAA(3), 94AAA(7)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Darley & Darley [2016] FamCAFC 10
Robinson and Willis (1982) FLC 91-215; [1982] FamCA 16

APPELLANT:

Mr Waring

RESPONDENT:	Ms Penry
INDEPENDENT CHILDREN’S LAWYER	Patrick Dooley, Dooley Solicitors
FILE NUMBER:	BRC	7008	of	2015

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

19 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 September 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 February 2018

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ashcroft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Dooley,
Dooley Solicitors

Orders

The father’s Application in an Appeal to adduce further evidence on appeal filed on 5 July 2018 be dismissed.
The appeal against the orders made by Judge Cassidy on 22 February 2018 be dismissed.
There be no order as to costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Waring & Penry has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 25 of 2018
File Number: BRC 7008 of 2015

Mr Waring

Appellant

And

Ms Penry

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

On 22 February 2018 Judge Cassidy made parenting orders[1] by consent on a final basis concerning the child B, born in 2003, who was then 14 years of age and has recently turned 15. The parties who consented to those orders were each of the child’s parents, and the Independent Children’s Lawyer (“the ICL”) appointed pursuant to s 68L of the Act to independently represent the child’s interests in the proceedings.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The child’s father, Mr Waring, appeals from those orders. His appeal is opposed by each of the child’s mother, Ms Penry, and the ICL. The appeal is heard by a single judge pursuant to a Direction made under s 94AAA(3) of the Act.
In my opinion this appeal must be dismissed and, as it does not raise any question of general principle, reasons in short form for its dismissal may be given.[2] The lack of merit in the appeal and its limited scope renders its disposition amendable to short reasons.
[2] Pursuant to s 94AAA(7) of the Act.
Whilst an appeal lies from parenting orders made by consent, the authorities illuminate an important qualification on the nature of such an appeal. In Darley & Darley [2016] FamCAFC 10, the Full Court (Strickland, Murphy and Forrest JJ) said:
40.This Court said in Robinson and Willis, that the authorities illuminated the following relevant principles:
1.The fact that an order is made by consent does not make that order of any different nature from an order made otherwise … The order derives its force from the circumstance that it is a valid order made by the court in question, not from the agreement of the parties.
2.Amongst other conclusions which follow from that is that such an order may, subject to important qualification, be the subject of appeal in the same way as any other order. The important qualification is that as a consent order is made as a consequence of the consent of the parties to the court making that order, and not an adjudication by the court, the order may not be challenged by an appeal which is directed to the correctness of that order, that is, it cannot be appealed against on the merits. However, other grounds of appeal remain available as for example, fraud, mistake, fresh evidence, absence of jurisdiction …
(Italics in original; underlining added).
41.Reference was made in that case to the decision of the English Court of Appeal in Thwaite v Thwaite, where the Court of Appeal said that:
Similarly, as orders of the court, [consent orders] must be subject to the provisions which apply to appeals from orders made at first instance, though with one important exception. Where the court of first instance has not adjudicated on the evidence, its decision cannot be challenged on the ground that the court has reached a wrong conclusion on the evidence before it. Final orders of all kinds, however, can be challenged on appeal and may be set aside on other grounds.
42.Here, the parties were entitled to have the trial proceed to its conclusion and have his Honour “adjudicate it on the facts” including the competing serious assertions made by both parties and the single experts. However, they did not. By their respective applications to have his Honour make the orders they had each agreed to, each party was asking his Honour not to adjudicate upon the issues. Further, each party was, by their respective application, asserting that the orders proposed to be made were in the best interest of the children.
(As per original) (Footnotes omitted)
The father represents himself on the appeal as does the mother. He was asked to address his grounds of appeal as contained in his Amended Notice of Appeal filed on 5 July 2018. Those are stated as follows:
1. I felt under extreme duress when Judge Cassidy didn’t care about sexual alligations of one [Mr P] and my children in suppoened material, and when I confronted her she didn’t care, and in Auscript the conversation was deleted.
2. [Ms Penry] keeps braking court orders, to seperate my son and me because she wants to leave the country with my kids.
(As per original)
The father obviously has some serious complaints to make about what he says is non-compliance by the mother with the orders made on 22 February 2018, in that he says he has not seen his son for some three months. As was explained to the father, there is a distinction between enforcement of orders made and consideration, on an appeal, of any error concerning the making of such orders.
By Ground 1 of his appeal the father asserts that when consenting to the orders he “felt under extreme duress” and he says further that the primary judge “didn’t care about sexual alligations [sic]” with reference to the mother’s current partner. References are then made by the father to subpoenaed documents. However in the course of oral argument it became clear that, in advance of the consent orders being made, there were subpoenaed documents considered by the parties, including by the father. I have been taken to the relevant reference in the subpoenaed documents to a notification being made by an unknown person sometime in mid-2015 concerning the parties’ daughter G, who is not the subject of these proceedings. There is reference to that subpoenaed document in the transcript of the proceedings before the primary judge at page 8.
However the transcript also reflects that it was some time after that reference was made by the father to her Honour, that an adjournment was taken for more than an hour and upon the resumption of the proceedings after that period, the signed consent orders were placed before her Honour which are the orders which were made.
The father suggests in his oral argument that he consented to the orders because he did not “feel comfortable” advancing matters at a trial before her Honour. With respect to him, that falls well short of the contention that he felt under “extreme duress” (as contended in his grounds of appeal), but more significantly from a reading of the transcript there is nothing pointed to by the father to demonstrate any duress on the part of the primary judge. Moreover, there is no suggestion by the father that the duress or anything of its kind occurred in the negotiations in the adjourned period, prior to the orders being made. Thus it is that notwithstanding his knowledge of the subpoenaed documents and the adjournment referred to, the father consented to the orders.
In my view, none of the matters referred to by the father in either his written material or oral argument; or anything emerging from reading of the record; provides any foundation whatsoever for the father’s assertion that the orders made by consent were as a result of any undue pressure or influence by the primary judge, or anybody else.
For completeness I record that nothing has been suggested by the father to the effect that there was any improper pressure from either the mother or from the ICL or his counsel prior to the making of the consent orders.
The further evidence application of the father is addressed to the subpoenaed material to which I have earlier referred. That material obviously was available at the time the consent orders were made. Nothing to which the father directs this Court on appeal satisfies the test for admission of the evidence in accordance with the principles established in CDJ v VAJ,[3] but in any event receipt of that evidence cannot possibly demonstrate either of the grounds being made out that the father relies upon.
[3] (1998) 197 CLR 172.
The father asserts that there are “slabs missing” from the Auscript transcript of the proceedings before the primary judge. That seemed to be an assertion made relevant to the father having what he terms “confronted the judge” about the allegation or notification concerning his daughter that has already been referred to as appears in the subpoenaed material. However, as is pointed out at page 8 of the transcript, there is reference to the father having brought that topic to the attention of the judge and moreover neither of the mother nor the ICL or the ICL’s counsel supported the proposition that in any way the Auscript transcript of what occurred on the 22 February 2018 is missing any portions. There is no evidence to justify such an assertion and it is rejected.
It follows that it cannot be accepted that the father was under “extreme duress” in entering into the consent orders that were made, nor can be it be accepted that there has been any material change to the Auscript official record of the transcript of the proceedings.
In any event the father accepts on his own argument that in the chronology of events that occurred, it was after he had read the subpoenaed material; and after any exchange between himself and the primary judge; that he entered into the consent orders signed by him and placed before the primary judge, after the adjournment referred to.
For these reasons I formally order that the father’s Application in an Appeal to adduce further evidence is dismissed and the appeal itself be dismissed.
No party sought any orders with respect to costs of this appeal. I will order that there be no order as to costs of the appeal.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 19 September 2018 edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 20 September 2018