Willis & Haering
[2024] FedCFamC1A 3
•25 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Willis & Haering [2024] FedCFamC1A 3
Appeal from: Haering & Willis [2023] FedCFamC1F 672 Appeal number(s): NAA 237 of 2023 File number(s): BRC 12158 of 2020 Judgment of: TREE, HOWARD & BRASCH JJ Date of judgment: 25 January 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought to adduce evidence that was reasonably available at time of trial – Where the proposed evidence would not have produced a different outcome at the trial – Application in an Appeal dismissed.
FAMILY LAW – APPEAL – PARENTING – Where the appellant mother alleges procedural unfairness and bias on the part of the primary judge – No unfairness or bias established – Where none of the other grounds of appeal relied upon were successful – No error established on the part of the primary judge – Appeal dismissed – Each party to bear their own costs.
Legislation: Evidence Act 1977 (Qld) s 93A
Evidence Act 1995 (Cth) ss 121, 122
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 60CG, 68P, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 6.26
Cases cited: Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Coal & Allied Operations Pty Limited v Australian
Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47
Concrete Pty Limited vParramattaDesign and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DB v British Columbia (Director of Child, Family and Community Service)[2002] B.C.J. No. 253
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Eagle v Scarlett (No 2) [2020] FamCAFC 291
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979)144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johanson v Johanson (2022) 66 Fam LR 95; [2022] FedCFamC1A 74
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SS Hontestroom v SS Sagaporack [1927] AC 37
Strickland v Washington (1984) 466 US 668
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 83 Date of last submission/s: 22 November 2023 Date of hearing: 22 November 2023 Place: Brisbane Appellant: Litigant in person Counsel for the first and second respondent: Mr Hartwell Solicitor for the first and second respondent: Lander Solicitors Qld Counsel for the Independent Children's Lawyer: Ms Bertone Solicitor for the Independent Children's Lawyer: ELR Law ORDERS
NAA 237 of 2023
BRC 12158 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WILLIS
Appellant
AND: MR HAERING
First Respondent
MS HAERING
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
TREE, HOWARD & BRASCH JJ
DATE OF ORDER:
25 JANUARY 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 6 November 2023 is dismissed.
2.The Application in an Appeal filed 21 November 2023 is dismissed.
3.The Amended Notice of Appeal is dismissed.
4.The respondent’s application for costs 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Willis & Haering has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, HOWARD & BRASCH JJ:
By Notice of Appeal filed 31 August 2023 (and amended on 22 November 2023), Ms Willis (“the mother”) appeals against final parenting orders made on 18 August 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1). Those orders provided that the parties’ child X (“the child” or “X”) born in 2016 should move from living with the mother to living with Mr Haering (“the father”) who would have sole parental responsibility for her.
Orders were also made for the child to spend time and communicate with the mother. In particular, the primary judge ordered that in the event the mother returned to live within a 50-kilometre driving distance of City B[1], X would spend alternate weekends with the mother, as well as half school holidays and time on special days. Different orders were made for the child to spend time with the mother in the event that the mother remained living more than 50 kilometres driving distance from City B.
[1] South East Queensland.
Other orders were made for the child to spend time with Ms Haering (“the paternal grandmother”).
The father, the paternal grandmother and the Independent Children’s Lawyer (“the ICL”) all oppose the appeal.
APPLICATION IN AN APPEAL FILED 6 NOVEMBER 2023
On 6 November 2023 the mother filed an Application in an Appeal to adduce further evidence and filed an accompanying affidavit. On 21 November 2023, the mother filed what she called an “Amended Application in an Appeal”.[2] It is more correctly described as an additional Application in an Appeal to adduce further evidence. The mother seeks to put before the Court all of the documents annexed to her affidavit filed 6 November 2023 and, all of the documents annexed to her affidavit filed 21 November 2023. The other parties and the ICL opposed both applications.
[2] The mother also filed an Affidavit on 21 November 2023.
This Court has the discretion to receive further evidence pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”).
In CDJ & VAJ (1998) 197 CLR 172 (“CDJ”), the High Court of Australia stated the principles to be applied when an application is made to adduce further evidence at the hearing of an appeal.[3] At [111] the majority (McHugh, Gummow and Callinan JJ) stated, inter alia:
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.
[3] In CDJ, the High Court makes reference to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”). That provision has been replaced by s 35(b) of the FCFCOA Act.
The majority in CDJ went on to discuss other matters that the Full Court needs to consider when there is an application to admit further evidence. From [114] the majority stated:
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
115.Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
Section 93A(2) and parenting orders
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better ''custodian'' of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
119.Furthermore, the operation of s 65D, which contemplates subsequent applications, has to be taken into account:
"(l) In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
(2) Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order."
Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.
There is a substantial amount of further evidence that the mother seeks to adduce. Her affidavit filed on 6 November 2023 comprises more than 500 pages (including annexures). Annexure MW1 (“MW1”) contains 223 pages of documents, which it is said, by the mother, is the “tender bundle” from the trial before the primary judge. We shall refer to it as a tender bundle for convenience only, as it was not in fact tendered into evidence. Rather at the commencement of the trial, counsel for the Independent Children’s Lawyer informed the Court of the proposed tender bundle.[4]
[4] Note Transcript 26 July 2023, p.3 from line 29.
The primary judge made it clear to the parties (all of whom were represented by counsel and solicitors) that the tender bundle would not be received into evidence as one large bundle of documents. Necessarily this therefore meant that if a party wanted to rely upon a particular document, it would need to be tendered individually. Indeed, some of the documents that were contained in the tender bundle did make their way into evidence. They are as follows:
Exhibit 1: Transcript of NSW Police s 93A interview with [H], tendered: 26-07-2023, page 452.
Exhibit 2: Transcript of NSW Police s 93A interview with [X], tendered: 26-07-2023, page 472.
Exhibit 3: Clinical notes … re [X], tendered: 26-07-2023, page 482.
Exhibit 4: Video footage s 93A interview with [H], [not included in appeal book – video], tendered 27-07-2023, page N/A.
If the mother’s legal representatives wanted to ensure that other documents in the tender bundle were in evidence, then they ought to have tendered them. From the fact they did not do so, it is conceivable that a forensic decision was made not to seek the tender of particular documents, however whatever occurred in that regard, it cannot be said to amount to an error on the part of the primary judge.
As to the nature of the evidence the mother seeks to adduce on this appeal, in MW1 at pages 7 to 56 there are contained documents that had been subpoenaed from Queensland Police Service. There is a Temporary Protection Order dated January 2020. This Order was obtained by the mother (as the aggrieved) against the father (as the respondent). The transcript of the trial reveals that the Temporary Protection Order related to incidents which occurred in early January 2020. At the trial before the primary judge, both the mother and the father gave evidence about the events of those two days. The primary judge preferred the evidence of the father. His Honour considered the Temporary Protection Order dated January 2020 and he also took into account the Protection Order dated July 2020, and canvassed these matters at length (at [33]–[49]). His Honour made reference (in particular at [44] and [48]) to the fact that certain documents had not been tendered into evidence. This does not demonstrate any error on the part of the primary judge. It is a matter for the parties to tender documents.
At [50]–[66] the primary judge considered allegations made by the mother that the father had been involved in the death of animals.[5] His Honour rejected the allegations made by the mother and, after carefully considering the available evidence, made findings in relation to them. We note, for instance, that at [63] his Honour quotes part of a document produced by the Queensland Police Service under subpoena. The extract appeared in the mother’s trial affidavit. The primary judge found that the extract did not support the mother’s contention concerning one of the animals.
[5] Animals owned by the family.
The documents under the heading “Queensland Police” contained in the tender bundle, whilst not before the primary judge, relate to events and incidents about which there was much evidence at the trial. Notwithstanding that the parties did not tender those documents, his Honour considered the relevant evidence of the parties in relation to the matters mentioned in those documents and made findings concerning them. Those findings were largely based on the credibility of the witnesses, with his Honour, as he was entitled to do, concluding that he preferred the evidence of the father to the evidence of the mother.
There are also documents contained in MW1 relating to child protection and child safety matters. Those documents are contained, inter alia, between pages 57–98 (New South Wales Department of Family and Community Services and New South Wales Police Force) and between pages 99 and 105 (Department of Children Youth Justice and Multicultural Affairs). Of particular note are documents that relate to allegations made by the child H[6] against the father – for instance at pages 95 to 98. The disclosures made by the child H are referred to in these documents. These documents were not placed in evidence before the primary judge. However, his Honour did have before him a transcript of the interview conducted by New South Wales Police with H in June 2021 in Exhibit 1, which was tendered into evidence by the Independent Children’s Lawyer. Also, Exhibit 2 was the transcript of an interview between New South Wales Police and X which also occurred in June 2021.
[6] H (born in 2009) and G (born in 2007) are children of the mother and they lived in the household of the mother and the father during the relationship between the two parents who are parties to this appeal.
In addition to the transcripts of those interviews, there was also in evidence before his Honour (as Exhibit 4) a video of the interview conducted by the New South Wales Police with H.[7] The allegations made by H against the father were extremely serious and included allegations that he had sexually abused her. His Honour also had the evidence of the parents concerning these allegations. The documents contained in MW1 relating to child safety matters[8] (including the allegations made by H) assumed significantly less importance once the Independent Children’s Lawyer tendered Exhibits 1, 2 and 4. His Honour considered all of the evidence very carefully and made findings in relation to those allegations.
[7] It is referred to as the Section 93A video interview. That is a reference to s 93A of the Evidence Act 1977 (Qld). This reference is made – even though the interview was conducted in New South Wales by the New South Wales Police.
[8] Including documents obtained from two separate Departments of Child Safety (New South Wales and Queensland) and documents obtained from New South Wales Police.
We have considered all of the documents annexed to the mother’s affidavit filed 6 November 2023. Whilst we have discussed some of them we do not propose to refer individually to each document. It is sufficient to point out that the primary judge made a number of central findings, in large part, based on the credibility of the mother and the father. His Honour found against the mother on credibility and preferred the evidence of the father. The primary judge was in a position of real advantage to see, hear and assess the mother and father on issues of credibility. This advantage takes on particular importance in a parenting case (CDJ at [117]).
Therefore, not only was most of the now proffered material reasonably available at trial, but more, in light of the primary judge’s findings, we are not satisfied that it would have produced a different result if it had been tendered into evidence at the trial. None of it reveals or highlights any error on the part of the primary judge, nor relates to events that have occurred after the conclusion of the trial.
The mother’s application to adduce further evidence filed 6 November 2023 is dismissed.
APPLICATION IN AN APPEAL FILED 21 NOVEMBER 2023
On 21 November 2023 the mother filed a further Application in an Appeal and an affidavit containing evidence that she wanted to adduce on the hearing of this appeal. Primarily this evidence relates to the mother’s attempts to show that the father had misled the Court in relation to his living arrangements with his new partner, Ms L. The mother’s arguments in relation to this issue are without merit.
At [138] of the Reasons for Judgment the primary judge stated:
138.The second respondent’s capacity as a parent who has the full-time care and control of the child is untested. Whilst he says that he has the support of his current partner, there is no evidence that corroborates that. His working commitments mean that he will need assistance to properly care for [X] and meet her physical needs. I am satisfied, however, that the second respondent, if [X] was to live with him, would ensure that those needs are met.
It is therefore clear that the primary judge in no way based his decision on the father’s living arrangements, and particularly the support that the father may or may not receive from his new partner, but rather was satisfied that the father himself alone had the capacity to meet the child’s needs. We are not satisfied that the further evidence annexed to the mother’s affidavit filed 21 November 2023 would have produced a different result if it had been available at the trial.
The mother’s application to adduce further evidence filed 21 November 2023 is dismissed.
GROUNDS OF APPEAL
The grounds of appeal are as follows:
1A. The court erred by failing to properly exercise Discretion, making Orders with inadequate reasoning to explain the decision, in particular but not limited to dismissing the submission of the Tender Bundle complied by the ICL (by Order), into evidence without prudent evaluation of this updating evidence nor giving a valid and well explained reason to exclude such probative and relevant evidence which has lead to an unfair trial and a miscarriage of justice.
2A. The court erred by failing to apply the Family Law Act 1975 (FLA)and the relevent parts of the Evidence Act 1995(Cth) in line with precedent and legislative intention, in particular but not limited to FLA s60CC provisions and the Objects of the Part VIII , where the child [X] relationship with her sisters [H] has been removed by Order in excess and that relationship is discounted, where there has been exposure to family violence, as outlined in the s4AB of the Family Law Act 1975, failing to apply mandatory provisions as noted in s60CG and s68P(1)(b), where material evidence provided to the court was not presented at trial (and where new evidence has since been found) should have been presented to balance the argument and substantiate fact, identifying the risk of the father where such an exclusion is an error of law and has lead to unfair and unsafe orders.
3A. The court erred by breaching the fair hearing rule, by not allowing procedural fairness, breaching client-solicitor Privilege wthout providing adequate steps to do so that has lead to an injustice.
(As per the original)
When there are allegations made on appeal that the primary judge displayed bias or that the trial was conducted with procedural unfairness, an intermediate appellate court must deal with such issues at the outset (Concrete Pty Limited vParramattaDesign and Developments Pty Ltd (2006) 229 CLR 577;[9] Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128[10]). Accordingly we shall deal with those matters first.
[9] Per Gummow A-CJ at pages 581 and 582; Kirby and Crennan JJ at page 611.
[10] Per Basten JA, Ward JA and Emmett AJA.
GROUND 3A
It is convenient to deal with the allegations of procedural unfairness and bias under this heading. Although the mother’s Summary of Argument[11] is difficult to follow, she maintains that the decision of the primary judge not to receive in evidence the tender bundle amounted to procedural unfairness. In paragraph 11 of her Summary of Argument she states:
11. I say the judge has acted on the wrong principle and centralised the 'rights' of a father not the law and precedent, poorly weighting probative evidence, denying probative and relevant evidence without focusing on the safety of a child in opposition to the Best Interest principles in s60 CC provisions and Objects of Part VII of the Family Law Act. The dismissal of the Tender Bundle evidence, that was updating evidence as indicated by emails to parties by the ICL, the failure to allow the court ordered. The Tender Bundle, noted in the Transcript, to be not accepted without clear reasons on Page 4 [10] ensure that some aspects of the Reasons for Judgement could be described as 'plainly wrong' and have lead to a miscarriage of justice. It could be argued the HH was shepherding the outcome of the trial but denying such evidence or perhaps a mistake. Regardless of what the reason the process of denial of the Tender Bundle was procedurally unfair.
(As per original) (Footnotes omitted)
[11] The mother’s Summary of Argument is annexed to her affidavit dated 30 October 2023.
The mother’s allegation that the primary judge “was shepherding the outcome of the trial” is extremely serious. The mother makes this allegation in reference to the primary judge’s decision not to receive into evidence the tender bundle at the commencement of the trial. As we have already stated, the primary judge was perfectly entitled to reject the tender of a large number of documents in the form of a tender bundle. Proceeding in this way did not mean that the primary judge was rejecting the evidence contained in the tender bundle.
There is thus no merit in the mother’s argument that his Honour’s treatment of the tender bundle amounted to procedural unfairness, nor that his Honour’s treatment of the tender bundle could be construed as the primary judge “shepherding the outcome of the trial”. The mother was represented by counsel and a solicitor. Unfortunately, it appears that the mother has fundamentally misunderstood the trial process, in that she has not grasped how it is that subpoenaed documents become evidence. This is regrettable, but it is not indicative of any error on the part of the primary judge.
Another aspect to the mother’s argument of procedural unfairness relates to the manner in which the primary judge dealt with a particular issue that arose during the evidence, involving legal professional privilege. The mother has made some reference to this issue in her Summary of Argument. Paragraph 19 of the Summary of Argument states in part:
19. …It is fully contested that the [primary judge] by denying the court ordered Tender Bundle and breaching issues of Privilege by interviewing my legal counsel at trial about our conversations and exercising power unfairly that has lead to an unfair trial. These 2 issues alone are not in the interests of justice but rather a miscarriage of justice.
The paternal grandmother commenced the proceedings on 4 September 2020. The father filed a Response on 30 October 2020. During that period of time the mother was looking for rental accommodation. The mother gave evidence that she had applied for twelve rental properties. Initially the mother applied for rental properties in Queensland and then the mother applied for some properties in New South Wales. On the first day of the hearing the mother was being cross-examined by counsel on behalf of the father. The transcript records:
[FATHER’S COUNSEL:] You didn’t inform the court that you had intentions to relocate to New South Wales at that time, did you?
[THE MOTHER:] No, because I didn’t have a property then.
[FATHER’S COUNSEL:] But you didn’t tell the court that you were applying for properties in New South Wales, did you?
[THE MOTHER:] I wasn’t asked.
[FATHER’S COUNSEL:] During the period where you were applying for properties, the father also filed an application in a proceeding seeking that you be restrained from relocating more than 50 kilometres from Brisbane. Do you recall that?
[THE MOTHER:] Yes.
[FATHER’S COUNSEL]: And that was 12 November 2020. Correct?
[THE MOTHER]: Yes.
[FATHER’S COUNSEL]: Your evidence is, isn’t it, that you knew on 26 November 2020 that you were intending to move to New South Wales, didn’t you?
[THE MOTHER]: That I got a house, yes, because I had to be out.
[FATHER’S COUNSEL]: And on 26 November 2020 when you knew that you had got a house in New South Wales and you appeared before [a Senior Judicial Registrar] by telephone that you were relocating?
[THE MOTHER]: Yes.
[FATHER’S COUNSEL]: You didn’t bring that to the court’s attention, did you?
[THE MOTHER]: No, because they asked me was I going to WA or New Zealand.
[FATHER’S COUNSEL]: It is noted on the Registrar’s orders that the solicitor for the mother informed the court that the mother has no intention of returning to reside – of residing in Western Australia?
[THE MOTHER]: Yes.
[FATHER’S COUNSEL]: Did you think to mention, “But I am going to New South Wales”?
[THE MOTHER]: I was told not to, that it was none of their business.
HIS HONOUR: I’m sorry, who told you that?
[THE MOTHER]: My lawyer.
HIS HONOUR: I see. That’s a serious allegation to make, ma’am. What’s the name of the lawyer?
[THE MOTHER]: [Ms Q] – I don’t know – [Ms Q]…
HIS HONOUR: No, no, you have to do better than that. What’s the name of the lawyer?
[THE MOTHER]: [Ms Q].
HIS HONOUR: Direct that a subpoena issue to [Ms Q] so that she can come and give evidence in these proceedings in relation to the assertion from the witness that the lawyer told her not to disclose something inconsistently with her duty of disclosure to the court. Have the subpoena issued and served forthwith. Go on, [father’s counsel]. I will not tolerate people blaming their lawyers, and I will get to the bottom of whether what you have just asserted, ma’am - - -?
[THE MOTHER]: Well, she knew I was going to New South Wales.
HIS HONOUR: …is true or correct?
[THE MOTHER]: Yes.
HIS HONOUR: True or not?
[THE MOTHER]: It is true.
HIS HONOUR: She told you not to tell the court, is your evidence?
[THE MOTHER]: Yes.
HIS HONOUR: Go – go on, [father’s counsel]?
[THE MOTHER]: That it didn’t need to be told.
HIS HONOUR: Go on, [father’s counsel]…[12]
[12] Transcript 26 July 2023, p.57 line 43 to p.59 line 1.
Mr S (trial counsel for the mother) acknowledged that in that exchange, his client had waived privilege in relation to one single issue, namely whether or not her previous lawyer had advised her not to inform the Court that she intended to relocate to New South Wales.[13] (It also has to be noted that the transcript is incorrect to this extent – it refers to Mr Hartwell addressing the Court at 10:59am on 27 July 2023. The two exchanges noted on the Court transcript as “Mr Hartwell” should, in fact, read “Mr [S]”. It is obvious from a reading of the transcript that the statements were made by Mr S).[14] Mr S and the other barristers appearing at the trial, along with his Honour, were all of the opinion that the mother had indeed waived her right to legal professional privilege in relation to this one particular issue.[15]
[13] Transcript 27 July 2023, p.5 lines 29-34.
[14] We note that this was also brought to the Court’s attention in the Summary of Argument of the first and second respondents filed 16 November 2023 at paragraph 33, footnote 10.
[15] Evidence Act 1995 (Cth) s 122(2).
The mother raises this issue now in support of her argument that the primary judge did not conduct the hearing in a fair manner. In paragraph 22 of her Summary of Argument she also maintains that the manner in which the primary judge dealt with this issue showed bias. We disagree. The mother clearly waived her right to legal professional privilege as her counsel conceded.[16] The question as to whether or not the Court had been deliberately misled by the mother was a matter of great importance. It is even more serious if a party intentionally misleads the Court because she was told to do so by her lawyer. Such conduct, if proven, has the potential to undermine the administration of justice. It is not surprising, therefore, that his Honour directed that a subpoena be issued and served upon the lawyer in question. Rule 6.26(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that the Court may, on the Court’s own initiative, issue a subpoena to give evidence.
[16] Referred to in the Evidence Act 1995 (Cth) as “Client Legal Privilege” - see from s 121.
In her evidence the solicitor did not recall the mother telling her (at the time of the Court appearance in November 2020) that the mother intended relocating to New South Wales. That was the end of the matter.
The approach taken by the primary judge was reasonable, fair and conventional, and in no way procedurally unfair. Further, we do not consider that the approach taken by the primary judge in relation to this issue was evidence of bias on his Honour’s part; particularly it would not lead “a fair-minded lay observer [to] reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11][17]).
[17] Per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The mother is self-represented and we have worked on the basis that when the mother uses the word “bias” she is referring to “apprehended bias” – rather than “actual bias”. We have not been assisted by any reasoned argument in relation to the issue.
There is a further complaint by the mother that there was “a focus on expediency” by the primary judge. Under r 1.04 of the Rules and s 67 of the FCFCOA Act, there is a positive obligation on trial judges in this jurisdiction “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.[18]
[18] Note r 1.04.
It is not correct for the mother to say (as she does in paragraph 41 of her Summary of Argument) that the primary judge did “not allow the presentation and full consideration of material facts”. The parties and the ICL were at liberty to tender into evidence relevant documents. Again, this submission shows the mother’s unfortunate misunderstanding of the trial process and the respective roles of the parties, their lawyers, the ICL and the Court. In any event, the primary judge did indeed give careful consideration to all allegations relating to family violence and other risk issues, including the allegations that the father had sexually abused the child H (see for instance [67] and [69]–[83]).
Further, we note that the mother herself gave evidence in relation to the allegations of family violence and the allegations of sexual abuse by the father. Time and again his Honour rejected the mother’s evidence. We note for instance that at [83] his Honour stated:
83.I find that it is unlikely that the events described by [H] – any of them – actually occurred. I am not satisfied on the balance of probabilities that they did. I consider that it is more likely that these matters have been raised with [H] by the first respondent [the mother] for the purpose of [H] repeating them to the authorities.
(Footnote omitted)
Reference was made by the mother to the fact that the Child Protection Authority (in New South Wales) had apparently noted that H’s allegations against the father were “substantiated”. That is not the end of the matter. It is never the end of the matter. It remains, on all occasions, for the judge at first instance to hear evidence from the parties and make findings in relation to events. It must be kept in mind that the primary judge had the transcript of the interview conducted by the police with H and the video of the interview conducted by the police with H.
In paragraph 53 of her Summary of Argument the mother complains that she was not cross examined on domestic violence – except for one discussion. The mother complains that “this approach was highly prejudicial to me, showed behaviours that could be described as a form of ‘bias’”. The mother’s complaint appears to be that the primary judge did not cross examine her in relation to the question of domestic violence. It is not the role of a trial judge to cross examine any witness. The matters raised in paragraph 53 again show that the mother has a fundamental misunderstanding of the trial process and the role of the judge.
There is no merit in the mother’s complaints of procedural unfairness and bias. Ground 3A fails.
GROUND 1A
His Honour’s decision in this case involves an exercise of discretion. In House v The King[19], the High Court (per Dixon, Evatt and McTiernan JJ) stated at page 504:
…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 a 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 of 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….
[19] (1936) 55 CLR 499.
In Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at [627] Kitto J stated:
I shall not repeat the references I made in Lovell v. Lovell to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
(Footnotes omitted)
More recently, in Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14], the High Court reaffirmed this position:
Ordinarily, if there has been no further evidence admitted and if there had been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was an error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.
(Footnotes omitted)
In Ground 1A the mother makes complaint (again) about the primary judge’s treatment of the tender bundle. For the reasons that we have already explained we do not consider the approach taken by his Honour amounted to an error. His Honour was not, for instance, required to give reasons to explain the direction that he issued from the bench on the first morning of the trial relating to the documents contained in the tender bundle. Each of the parties were represented by counsel and solicitors and would therefore be taken to have understood that his Honour was merely directing the manner in which documents were to be tendered into evidence.
Further, we have already explained why the primary judge’s direction relating to the documents contained in the tender bundle cannot be said to amount to procedural unfairness or apprehended bias, nor was there a miscarriage of justice.
Although not explicitly raised by this ground, in her Summary of Argument the mother suggests that the primary judge may have made different findings of fact concerning the child H’s allegations of sexual abuse against the father, if he had before him the documents contained in the tender bundle. We have already addressed this issue when we considered Ground 3A. The primary judge had the video police interview with H and the primary judge had a transcript of that interview, as well as the evidence of both parents. As we have already stated, the primary judge was in the prime position to assess the credibility of the witnesses. In Devries v Australian National Railways Commission (1993) 177 CLR 472 (“Devries”) Brennan, Gaudron and McHugh JJ stated at 479:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against – that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable.”
(Emphasis added) (Footnotes omitted)
Similarly, in Fox v Percy (2003) 214 CLR 118 the High Court, per Gleeson CJ, Gummow and Kirby JJ stated at [23] that an appellate court:
23.…must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
(Emphasis added) (Footnotes omitted)
Time and again the primary judge made findings against the mother based on credibility. We note, for instance, the following findings made by the primary judge:
(a)That the allegations of sexual abuse as described by H were raised by the mother with H, for the purpose of H repeating them to the authorities (note [83]);
(b)That the mother was prepared to make serious allegations against the father “in a haphazard way and without any evidence” (at [84]);
(c)His Honour was particularly unimpressed with the fact that the mother had, at an earlier point in time, made an allegation that it had been reported to her (the mother) that the father had inserted fingers into X while changing her nappies. The father gave evidence at the trial that this appeared in an earlier Notice of Child Abuse, Family Violence and Risk filed 4 December 2020. The reason the primary judge was unimpressed with the mother was because those allegations were not pursued at the trial before his Honour, nor mentioned to the Family Report Writer, in circumstances where the primary judge “would have expected that if such allegations had any basis in any observations made by the [the mother] or other evidence, they would have been raised” (at [84]); and
(d)That the mother’s assurance to the Court on 26 November 2020 that she did not intend to relocate to either Western Australia or New Zealand, revealed that she was disingenuous. This is because the mother did not then intend to relocate to Western Australia or New Zealand, but did intend to relocate to New South Wales and, not only that, but she had already made arrangements to do so (at [87]).
It is also maintained by the mother that the primary judge’s refusal to accept the tender bundle as one exhibit, impacted upon, or may have impacted upon, his Honour’s credibility findings against her. We find this impossible to accept. His Honour's findings against the mother, on credit, were overwhelming.
There is no merit in Ground 1A.
GROUND 2A
This ground of appeal is long, rambling and lacking in particularity. The mother makes sweeping assertions, including that the primary judge:
(a)failed to apply the provisions of the Act – including s 60CC; the objects of (presumably) Part VII of the Act; s 60CG and s 68P(1)(b); and
(b)failed to apply the relevant parts of the Evidence Act 1995 (Cth).
We disagree. The primary judge considered at length the question of the risk of harm, and specifically noted at [9] that one of the tasks at hand was for the Court to determine whether there was a need to protect X from abuse or family violence by the father. His Honour also correctly identified that another of the significant issues he was required to determine was whether or not there had been any family violence involving the child or a member of the child’s family that was relevant to the proceedings, and if so, what significance it had to the outcome of the proceedings.
His Honour then proceeded to consider the evidence and make findings in relation to the significant issues outlined in [9]. As we have already pointed out, his Honour made findings concerning the allegations made by H against the father. His Honour explained why it is that he concluded at [112] there was no need to protect X from a risk of abuse in the father’s household. His Honour's reference to “abuse” at [112] was clearly a reference to “sexual abuse” because that is the subject of that paragraph.
At [113] the primary judge rejected the mother’s evidence relating to family violence and, came to the conclusion at [115] that there was no need to protect X from a risk of physical, emotional or psychological harm by reason of being exposed to abuse, neglect or family violence in the father’s household. These findings and conclusions reached by his Honour were made after a careful consideration of the evidence before the Court, and were all open to him on the evidence.
His Honour has taken into account the relevant provisions of Part VII of the Act. His Honour was not required to specifically make mention of particular sections or subsections in the Act.
The mother again appears to complain that the failure to accept the tender bundle as one exhibit could have impacted the outcome of the hearing. But as we have already explained, that evidence was never actually excluded by the primary judge. The judge merely had issued a direction as to how the trial was to be conducted – particularly in relation to the tender of documents into evidence.
It cannot be said that his Honour, in reaching the conclusions that he did at first instance, “failed to use or has palpably misused his advantage”.[20] Further, his Honour has not acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence”. Nor has his Honour acted on evidence that was “glaringly improbable”.[21]
[20] Devries at 479; SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.
[21] Devries at 479; Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842 at 844.
His Honour did consider the risk of family violence, as required by s 60CG of the Act. The requirement contained in s 60CG(1) for a court to ensure that a parenting order is consistent with a family violence order, contains the caveat that this obligation upon the court remains subject to the court’s conclusions concerning the child’s best interests. The same applies in relation to the requirement contained in s 60CC for a court to ensure that an order does not expose a child (or indeed any other person) to an unacceptable risk of family violence. His Honour made extensive findings concerning the best interests of X and, specifically, made findings that she was not at risk of harm in the father’s household.
The mother has made a reference to s 68P of the Act. Section 68P states:
68PObligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order
(1) This section applies if:
(a) a court:
(i) makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or
(ii) makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or
(iii) grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and
(b) the order made or injunction granted is inconsistent with an existing family violence order.
(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:
(a) specify in the order or injunction that it is inconsistent with an existing family violence order; and
(b) give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and
(c) explain (or arrange for someone else to explain) the order or injunction to:
(i) the applicant and respondent in the proceedings for the order or injunction; and
(ii) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(iii) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d) include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:
(i) the purpose of the order or injunction; and
(ii) the obligations created by the order or injunction, including how the contact that it provides for is to take place; and
(iii) the consequences that may follow if a person fails to comply with the order or injunction; and
(iv) the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and
(v) the circumstances in which a person may apply for variation or revocation of the order or injunction.
(2A) Subparagraph (2)(c)(iii) does not apply to a child if the court is satisfied that it is in the child’s best interests not to receive an explanation of the order or injunction.
(2B) Paragraph (2)(d) does not require inclusion of a matter in an explanation given to a child if the court is satisfied that it is in the child’s best interests for the matter not to be included in the explanation.
(2C) In determining whether it is satisfied as described in subsection (2A) or (2B), the court:
(a) must have regard to all or any of the matters set out in subsection 60CC(2); and
(b) despite section 60CC, may have regard to all or any of the matters set out in subsection 60CC(3).
(3) As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:
(a) the applicant and respondent in the proceedings for the order or injunction; and
(b) the person against whom the family violence order is directed (if that person is not the applicant or respondent); and
(c) the person protected by the family violence order (if that person is not the applicant or respondent); and
(d) the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and
(e) the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and
(f) a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.
(4) Failure to comply with this section does not affect the validity of the order or injunction.
The Parliament has framed s 68P in interesting terms. On the one hand s 68P(2) is framed in mandatory terms – “the Court must”. On the other hand, s 68P(4) states that the failure to comply with the section does not affect the validity of the order.
The order made by the primary judge on 18 August 2023 does not, on its face, specify that the terms of the order are inconsistent with an existing family violence order. However, accompanying the order that was made on 18 August 2023 were the simultaneously published Reasons for Judgment. In those his Honour considered the facts and circumstances upon which the Protection Order was made. His Honour has also referred to the Temporary Protection Order that had been made at an earlier point in time. At [143] his Honour stated:
143. I have set out above the history of the protection order application between the first respondent and second respondent. I am not satisfied on the evidence that the second respondent has perpetrated the family violence alleged by the first respondent in her trial affidavit. That is so, notwithstanding the making of the protection order.
It is abundantly clear from [143] that his Honour was well aware the parenting order his Honour made on 18 August 2023 was inconsistent with the Protection Order.
Further, his Honour specifically arranged for the parenting order to be explained to the child (Order 15). The Reasons for Judgment provide a sufficient explanation for the parents.[22]
[22] In relation to the need for an “explanation” see – s 68P(2)(c).
In our view, his Honour has complied with s 68P. In any event, s 68P(4) is stated in unequivocal terms. For the reasons stated we have reached the conclusion that there is no merit in this argument.
The primary judge considered the question of the risk of harm to the child in being removed from the care of the mother, who had, until 18 August 2023, been her primary carer, and also considered the child’s relationship with H. His Honour carefully considered and weighed the various advantages and disadvantages to the child, in the event of a change of residence to the father, but concluded that the advantages outweighed the disadvantages. His Honour stated at [135]–[136]:
135.The most significant advantage that will flow to [X] from living with the second respondent is that she will have the opportunity, I find, to have a relationship with both of her parents not just one of them. She will avoid the long-term detriments identified by the evidence.
136.As I have indicated already, if [X] is to remain living with the first respondent, somewhere in New South Wales, she will be unlikely to have a relationship with the second respondent facilitated for her notwithstanding any orders for time between her and the second respondent (or the applicant for that matter).
Many of the complaints raised by the mother in her Notice of Appeal and Summary of Argument amount to nothing more than criticisms of the weight that the primary judge has ascribed to the evidence. It is important to keep in mind what the High Court said in Gronow v Gronow (1979) 144 CLR 513, where at first instance the trial judge came to the conclusion that the two-year-old daughter of the parents should move residence and live with the father. The Full Court of the Family Court[23] reversed the primary judge’s decision and made an order granting residence of the child to the mother. On appeal to the High Court, Stephen J[24] preferred the conclusion reached by Fogarty J – who delivered the dissenting judgment in the Full Court. Stephen J stated from 519:
My own views are very much in accord with those of Fogarty J.: this was not a case in which the Full Court should have intervened. It will serve little purpose to refer to the numerous authorities which, in varying language but with unvarying emphasis, describe the principles which should be applied by an appellate court in an appeal from a decision founded upon the exercise of a judicial discretion. Both the judgments of the majority and the dissenting judgment of Fogarty J. in the present case refer to appropriate authorities and cite relevant passages. It is not the principles which are in doubt. It is in the application of those principles to particular cases that difficulties arise.
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[23] As this Court was then known.
[24] The most senior member of the Court in this instance.
Aickin J stated[25] at 538:
The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved.
[25] In the result, Aickin J agreed with Stephen J along with Mason and Wilson JJ – that the primary judge’s decision granting custody of the child to the father should be reinstated.
In the case presently before the Court, the primary judge was at a significant advantage in assessing witnesses and made comprehensive findings. It is well settled that a judge at first instance is not required to mention every fact or argument relied on by the losing side. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62] the High Court[26] stated:
62.A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.[27]
[26] Per Gleeson CJ, McHugh and Gummow JJ; see also Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 per Mahoney JA.
[27] Also note Eagle v Scarlett (No 2) [2020] FamCAFC 291 at [103] and Johanson v Johanson (2022) 66 Fam LR 95 at [43].
The mother has relied upon a Notice of Appeal and a Summary of Argument that are, at times, difficult to comprehend. It is timely to keep in mind what the Full Court of the Federal Court had to say in Bahonko v Sterjov (2008) 166 FCR 415 at [3]:[28]
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd(as trustee for the Baker Family Trust) (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
[28] Per Gyles, Stone and Buchanan JJ.
The mother complains that her counsel and her legal representatives were incompetent. This is first raised by the mother in relation to the question of the tender bundle. In OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281 (“OP v TP”) the Full Court[29] held that whenever this issue arises on appeal, the correct approach involves a consideration as to whether or not two particular issues have been established. At [128], the Full Court stated:
… One is as to whether incompetence on the part of counsel has been established, and we would adopt the view taken by O’Connor J in Strickland (supra) as the appropriate one in applying this test. The other is the issue of prejudice and we think that the appropriate test to be applied to the issue of prejudice is that adopted in DB’s case (supra), that is, but for the incompetence of counsel, is it reasonably probable that the result of the trial would have been different? There may, as was pointed out in DB’s case, be cases where the procedural irregularities are such as to demonstrate a miscarriage of justice regardless of the result. In our view such cases would be less common and we do not regard this case as falling into that category.[30]
[29] Per Nicholson CJ, Buckley & Kay JJ.
[30] Strickland v Washington [1984] 104 S.Ct.2052 (Supreme Court of the United States) (“Strickland”); DB v British Columbia (Director of Child, Family and Community Service) [2002] BCCA 55 (Rowles JA, Ryan JA and Saunders JA) (“DB”).
We have not had the benefit of any reasoned argument as to whether or not the failure to tender into evidence all of the documents contained in the tender bundle amounts to incompetence on the part of the mother’s counsel. In the circumstances of this case, it seems to us that the conduct of counsel could not be said to be incompetent because of our conclusion that the tender of those documents at the trial would not have changed the outcome.
In any event the second limb of the test stated by the Full Court at [128] in OP v TP poses an insurmountable problem for the mother. If all of the documents contained in the tender bundle had in fact been tendered into evidence before the primary judge, the question that we need to consider is whether it is reasonably probable that the result of the trial would have been different? The Full Court in OP v TP cited with approval O’Connor J’s comments in Strickland that “a reasonable probability is a probability sufficient to undermine confidence in the outcome”.
We have had close regard to all of those documents. As we have observed, in fact four of them did make their way into evidence by virtue of a tender by the ICL. As for the balance, we are far from satisfied that their tender would have resulted in a different outcome. As will be apparent from the reasons we have provided thus far, the primary judge was able, by reference to the documents that were in fact tendered, to the affidavit material of the parties and their oral evidence, to carefully assess all of the relevant issues and considerations that are required in the conduct of a parenting case.
The comprehensive credit findings made by the primary judge against the mother were highly unlikely to be any different in the event that the primary judge had before him in evidence the balance of the documents contained in the tender bundle.[31] The failure to tender into evidence all those documents has not undermined confidence in the outcome of the trial. Hence, we are not able to conclude that it is reasonably probable that the result of the trial would have been different. Indeed, our view is the same in relation to all of the documents annexed to the mother’s affidavits filed 6 November 2023 and 21 November 2023 respectively.
[31] i.e. those documents in addition to the four exhibits that were tendered.
In addition to her complaint that her legal representatives were incompetent in relation to the tender bundle, the mother makes other complaints, including at paragraphs 44 and 45 of her Summary of Argument, where she states:
44.I also say that I provided my lawyers with extensive evidence that was placed in the previous abandoned trial affidavit in May 2022 or via email and they failed to utilise it. Much of what HH complains about the ‘First Respondent’ lacking evidence as part of the Evidence in Chief, or lack thereof in my case, was provided to my lawyers who did not put it before the court.
45.My affidavit outlined the experiences I felt as a survivor of abuse. It was unjustly minimised without reason. It is noted in legislation that the court is obliged to consider s 60CC(2)(b) where the best interest is served with " the need to protect the child from physical and psychological harm from being subjected to or exposed to neglect or family violence." I say that this has not occurred on a fundamental level.
(As per original) (Footnotes omitted)
This argument must fail. The mother has not put before this Court the documents or other evidence that she says she provided to her lawyers and which they did not utilise before the primary judge. The evidence or information referred to by her may have been inadmissible; it may have been scandalous; it may not have been helpful to the mother. There is no way that this Court can determine whether or not the failure to use the evidence amounted to incompetence, and there is no way that this Court can determine that it is reasonably probable that, but for any alleged incompetence of counsel, it was reasonably probable that the result of the trial would have been different. There may well have been valid forensic decisions taken by the counsel and solicitor in deciding not to include certain “evidence” in the mother’s trial affidavit.
Finally, in paragraph 58 on page 19 of the mother’s Summary of Argument she maintains that her legal representation did not adequately support her or respond when she gave her evidence in such a way under cross examination that she waived her legal professional privilege in relation to the single issue referred to previously. We have noted earlier that nothing turned on that particular point. We find it very difficult to criticise the mother’s counsel, given the extraordinary nature of the mother’s evidence at that point in the trial. It could not have been reasonably anticipated by counsel. The reason that the primary judge made a finding that the mother was “disingenuous” had nothing to do with the mother having waived privilege. The evidence before the Court was conclusive. The mother knew on 26 November 2020 that she intended on relocating to New South Wales and failed to notify the Court of this intention.
There is no merit in this argument. Ground 2A fails.
DISPOSITION OF THE APPEAL
We have not been able to identify any error on the part of the primary judge. The appeal must be dismissed.
COSTS
The father and the paternal grandmother have applied for costs in the fixed sum of $10,000.
Section 117(1) of the Act states that each party to proceedings under the Act shall bear his or her own costs. Section 117(1) is subject to s 117(2).[32] The Court can make a costs order if the Court is of the opinion that there are circumstances that justify it in doing so.[33] We have had regard to the considerations stated in s 117(2A). We note that the mother is a single mother and has the care of the child H; the mother has taken out a loan to meet her expenses relating to the appeal and (we apprehend) other living costs; is living in rental accommodation; is in receipt of social security; works in sales.
[32] And various other sections of the Act which are not presently relevant.
[33] Section 117(2).
The view we have formed is that the mother’s financial circumstances are somewhat straitened. Taking into account these matters and all the other considerations listed in s 117(2A), we have come to the conclusion that the appropriate order is that each party shall bear their own costs of the appeal.
The application for costs is dismissed.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Howard & Brasch. Associate:
Dated: 25 January 2024
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