Father Appeals Mother's Sole Parental Responsibility
Oakley & Millar (No 3) [2022] FedCFamC1A 82 (31 May 2022)
The appellant father appeals from orders providing for the respondent mother to have sole parental responsibility for the children and for them to live with her, but for the children to spend no time nor communicate with the father. The father contends that he was given less time to cross-examine. The Court, in ruling upon this case, assessed the adequacy of the primary judge's reasons.
Facts:
The appellant has lived in Australia since 2001 and is an Australian citizen. The parties were introduced in African Country B in 2006 or 2007. They married in 2010. The respondent was eventually granted a visa to enter Australia in 2012. Their two children were born in 2012 and 2014. The marriage broke down at some point between June and September 2014.
In September 2014, the family travelled to African Country B. All members of the family held return airfares, with the return trip due to be taken a month later in October 2014. Little more than a week after arrival in African Country B, the appellant and children returned to Australia without the respondent. The respondent later learned the appellant had caused her Australian visa to be cancelled, due to their marital separation. She therefore remained stranded in African Country B until February 2016, when she was finally able to obtain another visa enabling her entry into Australia.
All the while, the children lived with the appellant in Australia and did not see the respondent. Following the respondent’s return to Australia, she initiated proceedings seeking parenting orders under Pt VII of the Act. Upon being served with the respondent’s initiating process, in April 2016, the appellant took the children back to African Country B and placed them in the care of his family. He then returned to Australia alone. Orders were made for the children to be returned to Australia, but the appellant did not comply with the orders.
The children remained in African Country B. The respondent returned to African Country B in October 2016 to find the children. After spending a month searching, she found them and took them into her care. Proceedings in relation to the children had by then been commenced in African Country B by the paternal family, who alleged the respondent had abandoned the children.
The respondent defied an African Country B order to return the children to the care of the paternal grandmother, which resulted in her imprisonment for three days. More interim orders were made in November 2016 in Australia, providing for the respondent to have sole parental responsibility for the children, for them to live with her, and for them to be returned to Australia forthwith. The appellant protested his inability to ensure the children’s return to Australia but, in January 2018, after he was convicted of contempt and sentenced to a suspended term of imprisonment, the appellant facilitated the respondent and children’s return to Australia by signing the necessary African Country B documentation. They finally arrived back in Australia in May 2018.
The children have not spent any time with the appellant since he took them overseas and left them in African Country B in April 2016. The respondent sought that the interim orders be perpetuated: she have sole parental responsibility for the children, they live with her, and they not spend any time with the appellant. The appellant’s proposal vacillated, but he eventually sought orders for equal shared parental responsibility, for the children to transition into his residential care, and for them to spend time with the respondent. The primary judge made orders which were largely reflective of those proposed by the respondent and the ICL.
Issue:
Whether or not the appeal should be granted.
Applicable law:
Family Law Act 1975 (Cth) Pt VII, s 69ZX - provides that the primary judge was well entitled to limit the appellant’s cross-examination of the respondent.
De Winter v De Winter (1979) FLC 90-605 - relied upon in holding that the primary judge was mistaken to say the visa was actually cancelled in June 2014, but the mistake was entirely immaterial and does not sustain the appeal.
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 - provides that no matter the appellant’s modest financial circumstances, as he asserts them to be, unmeritorious litigation is no less unmeritorious because it is pursued by an impecunious litigant in person.
Oakley & Millar [2022] FedCFamC1A 7 - where the incompetent grounds were struck out and the appellant was given time to file an Amended Notice of Appeal.
Oakley & Millar (No. 2) [2022] FedCFamC1A 27 - where the appellant’s application for leave to issue subpoenas in the appeal was also refused.
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 - provides that the ground of being given less time to cross-examine alleges a denial of procedural fairness which must be considered by intermediate appellate courts.
Analysis:
The appellant began his cross-examination of the respondent at 12.20 pm on the first day of trial and it concluded at 4.00 pm on the third day of trial, taking well in excess of 2.5 days which, as the primary judge said, was more than sufficient on any reasonable view. As to the second contention of undue interruptions, the appellant cited only two examples, but neither fit the description of a “continual interruption during cross-examination”. The first example was an exchange between the appellant and primary judge before the trial began. The second did occur during his cross-examination of the respondent, but was not repetitive.
The appellant now complains that the primary judge told him the “information” given by the nurses was “irrelevant”. However, the comment to that effect by the primary judge was made when her Honour was first informed the respondent was not relying upon Ms Z’s affidavit from 2016, though the appellant had issued the subpoena to Ms Z requiring the production of records from 2012 to 2014. The nurses’ evidence became relevant, but only because the appellant made it so by persistently contesting the issue of the respondent’s psychological health.
Conclusion:
The Court dismissed the appeal. The appellant should pay the respondent’s party/party costs of and incidental to the appeal in the fixed sum of $5,405.71.