· 2022-01-18T09:14:31+0000 · 752 posts

Father Opposes Final Parenting Orders

Jerrim & Palmar [2021] FedCFamC1A 93 (20 December 2021)

Final parenting orders were made providing for the children to live with the mother and spend supervised time with the father. The father opposed such orders and lodged an appeal. The Court, in determining whether the primary judge's fidings were correctly challenged assessed the competence of the grounds of appeal.

Facts:

The father and the mother are aged 61 and 38 years of age respectively. Their relationship commenced in 2010 and concluded in 2018. Within that time, five children were born to them. At separation the mother moved into emergency accommodation. At the time of trial the father remained living in the former matrimonial home, with the mother living in a nearby town.

The primary judge found that the father had perpetrated physical family violence on the mother and at least one of the children. The father had been convicted of two breaches of a domestic violence order (“DVO”) in which the mother and the children were the aggrieved or protected parties. It was further found that there is a risk the father will continue to denigrate the mother in the presence or hearing of the children and that it is probable that the father will continue to commit further acts of family violence by at least that means. Based upon those findings the primary judge made orders that the mother have sole parental responsibility for all five children, and that the children live with her.

There were further orders that the children spend two hours of supervised time with the father at a contact centre in each alternate month, and communicate with him via telephone or video call at 9.00 am each Saturday, or such other time as they may express a wish to do so. The father’s appeal challenges all of those orders. By Notice of Appeal filed 26 July 2021, the father appeals from final parenting orders made by a Federal Circuit Court judge on 9 July 2021. The mother and the Independent Children's Lawyer both oppose the appeal.

By Application in an Appeal filed 23 November 2021, the father seeks to adduce a number of additional documents into evidence in the appeal. Again the mother and the ICL both oppose that application.

Issue:

Whether or not the appeal should be granted.

Applicable law:

Family Law Act 1975 (Cth) s 117 - provides that each party to the proceedings should bear his or her own costs.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 - gives this Court an unfettered discretion to admit further evidence on appeal.

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 - provides that 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.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 - held that the apprehension of bias principle admits of the possibility of human frailty.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that it is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - provides that the test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair‑minded lay observer might 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”.

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 - provided that the father was legally represented at trial, and no complaint of apprehended bias was raised by his solicitor or counsel at the time is sufficient to deal with the ground that the primary judge allowed the mother to be shielded by a screen in court.

Analysis:

It is difficult to see how any such challenge could be made as to denial of natural justice and judicial bias given that the father was represented by solicitor and counsel during the trial, and no complaint of procedural unfairness was raised by them. At all times the father was on adequate notice as to the nature of the orders which the opposite parties were seeking. The father further alleged that the primary judge preferred the mother’s barrister over his, however no instance of that was demonstrated by the father. No direct challenge is made by the father’s appeal to any of the factual findings or conclusions by the primary judge which support the orders ultimately pronounced.

To the extent that the father’s complaint is that relevant material was only given to him immediately prior to the hearing of the mother’s DVO application, such material was the mother’s written submissions, not the evidence upon which she relied.

Conclusion:

No ground of appeal is established. The Court dismissed the Application in an Appeal filed 23 November 2021. The appeal is dismissed. No order is made as to costs.

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