Appellant Opposes Orders for Sole Parental Responsibility of Respondent

Emson & Makin [2022] FedCFamC1A 5 (28 January 2022)

The appellant pleads 29 separate grounds of appeal with 24 sub-grounds.  The appeal was listed to afford the appellant the opportunity to submit why many of the grounds of appeal should not be struck out as being incompetent.  The Court in determining whether or not to grant the appeal, assessed whether the grounds are sufficiently particularised to fairly enable the respondent to understand the case.

Facts:

Orders were made by a Judge of the Federal Circuit and Family Court of Australia (Division 1) on 20 September 2021 for the respondent to have sole parental responsibility for the children, for the children to live with her, and for the children to spend time with the appellant, beginning with a period of professional supervision.  

By his Notice of Appeal, the appellant indicates that, if the appeal succeeds and the appealed orders are set aside, he wants discretion re-exercised and substitute orders made for him to have sole parental responsibility for the children and for them to live with him.  

The appeal was listed to afford the appellant the opportunity to submit why many grounds of appeal should not be struck out as being incompetent.  The appellant pleads 29 separate grounds of appeal, though Ground 6 comprises another 24 sub-grounds, all of which run to six typewritten pages. 

Numerous grounds assert the primary judge “misconstrued” certain facts and circumstances, principally because her Honour accepted the respondent’s evidence in preference to his (Grounds 1, 2, 4, 6, 13, 14, 17, 18, 21, 22 and 25), when he asserts her evidence was false.  Other grounds repeat the bare allegation of the respondent’s evidence being untrue (Grounds 2, 4, 6, 12, 13, 14 and 15).  

The appellant did not contend he was thereby deprived of procedural fairness.   The appellant complained of the primary judge’s “negligence” in making orders for the children to live with the respondent, which is predicated upon his assertion that the respondent perpetrated family violence upon or in the presence of the children (Ground 5).

Issue:

Whether or not the grounds of appeal should be struck out as incompetent. 

Applicable law:

Analysis:

None of the grounds contend it was not open to the primary judge to prefer the respondent’s evidence over the appellant’s and, even if it was so contended, there was no ostensibly valid basis for the contention to be maintained or sustained.  The closest the appellant comes to challenging the primary judge’s reliance upon the respondent’s evidence is by alleging the whole of his evidence was “ignored” (Ground 28), but that is demonstrably false because the primary judge recited the evidence upon which the appellant relied and accepted some of his evidence.  To the extent the grounds could be charitably interpreted as allegations of material factual mistakes, they are insufficiently particularised to fairly enable the respondent to understand the case she must meet.  The bare complaint of the respondent filing her trial affidavit five days later than was required by earlier procedural orders (Ground 3) is not a viable ground of appeal.  Her affidavit was still in his hands in June 2021, nearly two months before the trial commenced in August 2021.

No finding of fact was made of the respondent committing family violence.  On the contrary, partly in reliance upon the appellant’s admissions, the primary judge found it was instead him who committed and exposed the children to family violence.  The appellant may not have liked the evidence given or the submissions made against him, but the primary judge could not tell witnesses what evidence they should give, nor tell lawyers what submissions they may make.  

Conclusion:

The Court ordered to strike out all but Grounds 10, 16 and 26 contained within the Notice of Appeal filed on 9 December 2021.  The only grounds of appeal, the competence of which can be inferred to potentially fall within those permitted by House v The King, or which potentially amount to some other form of legitimate appealable error, are:

(a) Ground 10, which alleges an insufficiency of reasons for the findings expressed at [175] and [186] of the judgment;
(b) Ground 16, which contends the primary judge gave insufficient weight to the evidence concerning his “forgiveness in relation to the [respondent]”; and
(c) Ground 26, which contends the appellant is not meaningfully involved in the children’s lives, implying some legal error in the application of ss 60B, 60CA, 60CC(2)(a), 60CC(3)(b) or 65AA of the Act.