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 Newett & Newett  (No 9) [2023] FedCFamC1A 23 (13 March 2023)

Last Updated: 21 March 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

 Newett & Newett  (No 9) [2023] FedCFamC1A 23

Appeal from:
 Newett & Newett  [2022] FedCFamC1F 439


Appeal number:


File number:


Judgment of:


Date of judgment:
13 March 2023


Catchwords:
FAMILY LAW – APPEAL – Allegations of corruption, fraud, judicial kidnapping and concealing crimes – Bias and discrimination – Ultra vires – Discretion – Errors of law – s 237B.4 of the Criminal Code Act 1995 (Cth) and application to judicial officers – Suppression of evidence – Fabricated findings – No error established – Appeal dismissed – Appellant to pay first respondent’s costs in a
fixed sum.


Legislation:
Criminal Code Act 1995 (Cth) ss 273B.4, 273B.4(1)(b)
Family Law Act 1975 (Cth) ss 4AB, 42, 60B, 60CC, 69ZN(7), 69ZX(3)(b), 93A, 102NA, 117(2A)(e)


Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
D & D (Costs) No 2 (2010) FLC 93-435; [2010] FamCAFC 64
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Moose & Moose (2008) FLC 93-375; [2007] FamCA 714
 Newett & Newett  (No 6) [2022] FedCFamC1A 70
 Newett & Newett  (No 7) [2022] FedCFamC1A 139
 Newett & Newett  and Anor (No. 5) [2020] FamCA 1023
 Newett & Newett  [2019] FCCA 619
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348


Number of paragraphs:
186


Date of hearing:
29 September 2022


Place:
Brisbane, delivered in Sydney


The Appellant:
Self-represented litigant


Counsel for the First Respondent:
Mr McGregor


Solicitor for the First Respondent:
Damien Greer Lawyers


The Second Respondent:
Self-represented litigant


Counsel for the Independent Children's Lawyer:
Mr Taylor


Solicitor for the Independent Children's Lawyer:
Norman & Kingston Solicitors


ORDERS
NAA 152 of 2022
BRC 2179 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS  NEWETT 
Appellant
AND:
MR  NEWETT 
First Respondent

MS ADLAM
Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:
ALDRIDGE, KARI & BRASCH JJ
DATE OF ORDER:
13 MARCH 2023

THE COURT ORDERS THAT:

  1. The appellant is granted leave to rely on:
    (a) The Amended Summary of Argument filed 26 September 2022, which the Court accepts in lieu of oral submissions;

    (b) the Addendum to Submission and Critique sent to the Court on 27 September 2022;

    (c) the List of Evidence sent to the Court on 26 September 2022 and Contended Appeal Book sent to the Court on 27 September 2022, but only to the extent that the List identifies evidence in the Contended Appeal Book and will be subject to the decision as to whether the primary judge was correct in rejecting the evidence;

    (d) The appellant’s List of Authorities filed 14 September 2022.

  2. The Application in an Appeal lodged on 29 September 2022 is otherwise dismissed.
  3. Leave is not granted to the appellant to rely upon any other documents not filed in compliance with the appeal directions dated 8 August 2022, or where leave has not otherwise been specifically granted.
  4. The first respondent is granted leave to rely upon:
    (a) Supplementary Summary of Argument filed on 23 September 2022.
  5. The second respondent is granted leave to rely upon:
    (a) The Summary of Argument filed 23 September 2022; and

    (b) Written submissions filed 26 September 2022.

  6. Order 2 of the appellant’s Application in an Appeal lodged on 29 September 2022 is dismissed.
  7. The appeal is dismissed.
  8. The appellant pay the first respondent’s costs fixed in the sum of $13,361.69 and that these costs be paid from the share of the funds being held by the Court in this matter, prior to the payment to the appellant of the balance.
  9. In the event there are insufficient funds in trust, the appellant pay to the first respondent such sum necessary to meet the total of $13,361.69 within 30 days of the date of this order.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Newett & Newett  (No 9) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALDRIDGE, KARI & BRASCH JJ:

INTRODUCTION

  1. This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 8 July 2022 in proceedings between the mother Ms  Newett  (“the appellant”), the father Mr  Newett  (“the first respondent”), the maternal grandmother Ms Adlam (“the second respondent”) and the Independent Children’s Lawyer (“ICL”).
  2. The orders relate to the parent’s three children X, born in 2011 (“X”), Y, born in 2013 (“Y”) and Z, born in 2014 (“Z”). The orders of the primary judge provide that the children live with their father and have limited, supervised time with their mother. The orders provide that the children’s time and communication with the maternal grandparents be as agreed between the first respondent and the maternal grandparents.
  3. By Notice of Appeal filed 11 July 2022, the appellant appeals the entirety of the parenting orders made by the primary judge on 8 July 2022. The appellant filed an Amended Notice of Appeal on 26 August 2022 wherein she set out 50 grounds of appeal. In her Amended Summary of Argument filed 26 September 2022 the appellant sought leave to add an additional ground referred to as “Abuse of Power by the Primary Judge” and asked that Ground 16 be read as four sub-grounds labelled (a) to (d). We proceeded on those bases.
  4. If the appeal is upheld, the appellant sought the following orders:
(Appellant’s Amended Notice of Appeal filed 26 August 2022, p.5) (As per the original)

BACKGROUND

  1. The first respondent, Mr  Newett , was born in 1975. The appellant, Ms  Newett , was born in 1977. In 2003 the parents commenced a relationship, and commenced cohabitation in mid-2005. In 2008 the parties married. In 2018 the parties separated on a final basis.
  2. Interim parenting orders of 6 March 2019 immediately changed the residence of the children from the appellant to the first respondent, with the children to have supervised time with the appellant ( Newett & Newett  [2019] FCCA 619). Thereafter, the matter has a long history of litigation, which is well and fairly summarised in  Newett & Newett  (No 6) [2022] FedCFamC1A 70 at [7]–[28].
  3. On 8 June 2020, the primary judge made orders pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”), which prevented each party from personally cross-examining the other. The first respondent has been legally represented throughout these proceedings, but the s 102NA ban has caused difficulties for the appellant. She was granted aid pursuant to the Commonwealth Family Violence and Cross-Examination of Parties Scheme to enable her to be represented. For whatever reason, three different sets of lawyers have been appointed for the appellant, but each has filed notices of ceasing to act.
  4. Trial directions were made on 26 October 2020 and the matter was listed for final hearing of the property and parenting dispute on 30 November 2020.
  5. On 30 November 2020, the primary judge determined to hear the property dispute but adjourned the parenting proceedings as the ICL was given leave to withdraw because the appellant had commenced a private criminal prosecution against him. The property aspect commenced on 1 December 2020, but the appellant walked out of those proceedings whilst underway. Her appeal against the property orders was dismissed. She subsequently brought an application under s 79A of the Act to set aside the property orders, which was summarily dismissed. A differently constituted Full Court has dismissed her appeal ( Newett & Newett  (No 6) [2022] FedCFamC1A 70).
  6. In addition to the lengthy proceedings in this court, the appellant has commenced numerous proceedings elsewhere. For example, the appellant commenced civil proceedings in the Supreme Court of Queensland against the single expert in the matter, Dr A. The claim was ultimately unsuccessful and was dismissed on or about November 2020 with the appellant ordered to pay costs. The appellant also commenced criminal proceedings against the then ICL in late 2020, resulting in the ICL being granted leave to withdraw from the matter (see  Newett & Newett  and Anor (No. 5) [2020] FamCA 1023).
  7. The first respondent’s lawyer was the subject of private criminal proceedings as a part of “a group of eight persons who, [the appellant] asserts, were involved in some form of conspiracy that caused the abduction of the children from her” ( Newett & Newett  and Anor (No. 5) [2020] FamCA 1023 at [19]). The appellant commenced proceedings against a number of persons who had sworn affidavits in support of the first respondent’s case. Further, the appellant commenced proceedings against members of the Queensland Police including the Commissioner of Police; those proceedings were dismissed by the magistrate.
  8. In 2019 a protection order was made by a magistrate in favour of the first respondent for a period of five years, naming the appellant as the defendant. Upon determination of the matter and the appellant’s cross application for a protection order being dismissed, the appellant appealed the decision. The appeal was heard by a District Court judge on 22 June 2020 and was unsuccessful. The appellant then attempted to seek a judicial review of the dismissal by the District Court judge to the Supreme Court of Queensland. The judicial review was dismissed.
  9. The transcript for this appeal reveals the appellant had endeavoured to bring proceedings in the Federal Court of Australia and is planning to seek prerogative writs in the High Court of Australia against the state of Queensland.

The parenting trial

  1. The parenting dispute in this court was heard by the primary judge commencing on 20 September 2021 for three days, with the matter then coming back before the primary judge for a further day a week later, on 29 September 2021, to hear the submissions of the ICL.
  2. On 27 September 2021, the appellant filed an Application in a Case and supporting affidavit seeking to re-open the evidence and to rely on a raft of historical affidavits. The primary judge dismissed the Application in a Case on 29 September 2021. Whilst the appellant complains about that in her Summary of Argument, she did not appeal from that order. It is therefore unnecessary for us to consider the application to re-open and supporting affidavits, which are primarily the Application in a Case filed on 27 September 2021, the appellant’s affidavits filed 27 September 2021 and 28 September 2021 and the Notice of Risk filed 3 October 2021.
  3. The primary judge reserved judgment, with the appellant and second respondent filing written submissions on 15 October 2021; the appellant’s were 87 pages in length and the second respondent’s 16 pages. The first respondent filed submissions of 21 pages on 29 October 2021. The appellant and second respondent filed written submissions in reply on 12 November 2021, of 77 pages and 31 pages respectively.
  4. In addition, on 15 November 2021 the appellant filed a document titled “Addendum to First Respondent’s Written Submissions” and “List of Authorities and Evidence Disclosure of Immaterial/Typographical Errors”. The primary judge did not receive this document into evidence (at [15]–[16]).
  5. On 19 December 2021, during the period in which the primary judgment was reserved, the appellant filed an Application in a Proceeding seeking communication orders. The primary judge subsequently made an order for communication between the children and the appellant and restrained the first respondent from removing the children from the Commonwealth of Australia pending appeal. In the course of her submissions, the appellant asserted that these subsequent orders demonstrated that the earlier final orders were erroneous. This submission does not follow. At best, the orders were incomplete. They will lapse on dismissal of this appeal but there is nothing we can do about that. There is no appeal in relation to those orders and the dismissal of the appeal terminates our jurisdiction.
  6. On 8 July 2022, the primary judge delivered the reserved reasons for judgment and made the orders from which this appeal arises.

Events and applications leading up to the appeal

  1. Unfortunately, due to the vast quantity of material with which the appellant deluged the Court it is necessary to outline the documents filed by her and to identify those received for consideration in the appeal.
  2. The appellant filed her original Notice of Appeal on 11 July 2022 and subsequently filed an Amended Notice of Appeal on 26 August 2022. The appellant also filed an Amended Application in an Appeal and two supporting affidavits on 24 August 2022 seeking a range of orders including that:
    (a) the Court purchase the balance of the transcript to be made available to the parties;

    (b) the Court provide the parties with the full Reasons for Judgment of all proceedings for the matter;

    (c) the Court receive audio files (and pay for transcribing) of hearings and Children’s phone calls;

    (d) the Court provide the appellant with a “full digital copy of ALL subpoena materials ever filed in BRC2179/2018 matter”; and

(e) “For reasons of impartiality, noting there are 35 Justices in Division 1:
That the Justices assigned in the Full Court Appeal to determine the matter:
(1) have not previously had any involvement in the BRC2179/2018 matter or any of its Appeals,
(2) are not/have never been members of the Queensland Law Society or Queensland Bar Association, and
(3) are not/have never been a Judicial Officer associated with the Brisbane Family Court and/or Federal Court Registries”.
(Amended Application in an Appeal filed 24 August 2022, p.2–3)
  1. At the hearing of the Amended Application in an Appeal on 26 August 2022, the appellant made an oral application for the recusal of Aldridge J, which was dismissed. Orders were made for the parties to be provided with the balance of the transcript not held by them of the proceedings before the primary judge on 20, 21, 22 and 29 September 2021. Any questions about the receipt of further evidence in the appeal were reserved to the hearing of the appeal. The Amended Application in an Appeal filed 24 August 2022 was otherwise dismissed:  Newett & Newett  (No 7) [2022] FedCFamC1A 139.

APPEAL DIRECTIONS

  1. On 8 August 2022, appeal directions were made. The appellant was given the benefit of an order permitting her to file a 30 page Summary of Argument (in lieu of the usual 15 pages), to be filed no later than 4.00 pm on 26 August 2022. In addition to the Summary of Argument, the appellant was given the benefit of a further order, which allowed her to file another 30 page document in lieu of oral submissions. The appellant ultimately filed a 56 page “combined Summary of Argument and Written Submission”, but not until 7 September 2022 (Appellant’s Summary of Argument filed 7 September 2022, paragraph 7).
  2. The appeal directions also required the appellant to file and serve a List of Authorities by 26 August 2022. Again, the appellant was late in complying with that order by filing a List of Authorities on 14 September 2022.
  3. The appeal was heard on 29 September 2022. In the days leading up to the hearing of the appeal, the filing of additional documents inundated the Court.
  4. On 26 September 2022:
    (a) The appellant filed an Amended Summary of Argument comprising of 63 pages. This became the primary Summary of Argument document upon which the appellant relied;

    (b) The second respondent also filed Written Submissions, although not provided for in the 8 August 2022 appeal directions;

    (c) The appellant sent to the Court an “Addendum to Submission and Critique of his Honour’s judgment”, which was 20 pages; and

    (d) The appellant sent to the Court a “List of Evidence” relied upon, being a 22 page document. It cross-referenced the footnotes in the appellant’s Summary of Argument to the Appeal Books and the Contended Appeal Book (to which we refer below). The List referenced vast swathes of documents, historical affidavits, the appellant’s own recordings of court events, reference to a USB key, documents from other court proceedings, and affidavits of the appellant filed after the evidence in the parenting proceedings had closed, along with what can best be described as commentary and/or further submissions such as:

E25. ...Attempt to suborning [Mr B], Single Expert Witness, 10 August 2018
...
E28. ...“No discredit of [Dr A] despite breach of Rule 15.59, perjury regarding RANZCP Standards, and Contempt of Court for non-compliance with Subpoena”
(Appellant’s List of Evidence, Entries 25 and 28)
  1. On 27 September 2022, the appellant sent to the Court an updated “Addendum to Submission and Critique of his Honour’s Judgment”, which was 30 pages.
  2. On 28 September 2022, the day before the appeal, the appellant sent to the Court a Contended Appeal Book consisting of 11,620 pages. We can only assume that this document was an attempt by the appellant to comply, albeit late with the appeal directions which provided that should the appellant dispute the settled index of the electronic Appeal Book, the appellant be at liberty to file a Contended Appeal Book but by 4.00 pm on Friday 19 August 2022.
  3. On the morning of the appeal, the appellant sent to the Court:
    (a) A 24 page List of Evidence relied upon (a second list);

    (b) An Application in an Appeal; and

    (c) Further Written submissions.

MATERIAL

  1. The Appeal Books prepared by the Court and before us were as follows:
    (a) Appeal Book 1 (Electronic Appeal Book, p.1–2368);

    (b) Appeal Book 2, Volume 1 (Electronic Appeal Book, p.2369–4573) – this contained evidence which the appellant said was wrongly excluded by the primary judge:

    (i) affidavit of Mr B (Family Report writer) filed 11 July 2018;

    (ii) affidavit of the appellant filed 20 September 2021;

    (iii) a large bundle of documents prepared by the appellant provided by Google Drive link to the Court and parties; and

    (c) Appeal Book 2, Volume 2 (Electronic Appeal Book, p.4574–6661) – this was a continuation of the Google Drive documents prepared by the appellant.

  2. In terms of Summaries of Arguments, authorities and other documents, the following were before us and leave given where necessary:
    (a) The appellant’s Amended Summary of Argument filed 26 September 2022, which the Court accepted in lieu of oral submissions (at the time wrongly noted as 27 September);

    (b) The appellant’s updated “Addendum to Submission and Critique” sent to the Court on 27 September 2022;

    (c) The appellant’s List of Evidence sent to the Court on 26 September 2022 and Contended Appeal Book sent to the Court on 27 September 2022, but only to the extent that the List identifies evidence in the Contended Appeal Book and will be subject to the decision as to whether the primary judge was correct in rejecting the evidence. The appellant agreed that the Court would only have regard to the contents of the List depending on what error, if any, was identified by this Court;

    (d) The appellant’s List of Authorities filed 14 September 2022;

    (e) The first respondent’s Summary of Argument filed 9 September 2022, Supplementary Summary of Argument filed 23 September 2022 and Amended List of Authorities filed 23 September 2022;

    (f) The second respondent’s Amended Summary of Argument filed 23 September 2022, Written Submissions filed 26 September 2022 and List of Authorities filed 9 September 2022; and

    (g) The ICL’s Summary of Argument and List of Authorities filed 16 September 2022.

  3. With respect to the List of Evidence and its references to the Contended Appeal Book, the appellant agreed that our consideration of same be limited to determining whether the material had been improperly rejected by the primary judge. We will consider whether those documents ought have been received into evidence as part of Grounds 4, 36 and 40 under the theme “Suppression of evidence or fabricated findings”.
  4. The appellant also sought to rely upon the second List of Evidence, sent to the Court the morning of the appeal, which was 24 pages. Counsel for the ICL had not had the opportunity to read it. We indicated to the appellant that the second List was received too late and would not be considered. The appellant did not press the issue.
  5. We did not need to receive the further submissions of the appellant provided on the morning of the appeal, which essentially re-argued her case and appeal. The appellant did not press that we receive it.
  6. With respect to the appellant’s Application in an Appeal sent to the Court on the morning of the Appeal, we indicated to the appellant that:
    (a) Order 1 was unnecessary as it was plain leave would need to be considered for any party wishing to rely on material filed contrary to the appeal directions;

    (b) Order 2 would depend upon the disposition of the appeal;

    (c) Order 3 was not relevant to the appeal upon the appellant explaining she wanted a copy of all subpoenaed documents for her “peace of mind” (Transcript 29 September 2022, p.9 line 19);

    (d) Order 4 was not an order capable of being made, but a submission and one previously made;

    (e) Orders 5 and 6 were matters already foreshadowed by the appellant; and

    (f) Order 7 was again more in the style of a submission.

  7. Save for Order 2, we dismissed the balance of the Application in an Appeal.

Oral submissions

  1. Whilst the appellant’s long written summaries were provided in lieu of oral submissions, we nevertheless asked the appellant to clarify two matters. The first concerned submissions made by the appellant that she was not permitted to call evidence of the risk of sexual abuse, or that such evidence was otherwise suppressed. However, the appellant confirmed evidence was given at trial and relevant witnesses cross-examined about five particular allegations:
    (a) The brown worm incident, being when the appellant deposed that Y apparently disclosed she “didn’t want Daddy to look after her and her sisters because of the brown worm on his bottom” and when Y showers with her father “the worm pops out and she didn’t touch it, but she caught the water that comes from it” (Appellant’s affidavit filed 10 April 2018, paragraphs 61–62);

    (b) Dancing in a way mimicking male masturbation, which was a reference to the second respondent deposing that:

    1. On Tuesday night the 8th December 2020 when [Z] and [Y] were having a shower I left the room to get them fresh towels and when I returned they were singing and dancing and [Z] (age 6) was rubbing her genitals whilst [Y] (age 7) was acting the part of a male masturbating . I was so shocked and chastised the girls and told them to stop and that it was not appropriate for young girls to act in that way and I do not want them to do it again. They did stop and just looked at me. I gave them their towels and asked them to dry themselves and get dressed.
(First Respondent’s affidavit filed 12 September 2021, paragraph 7)
(c) The use of the hairbrush, being that the appellant deposed she heard a child say, through a wall, the words “hairbrush” and “bottom” close together, and that a child told the second respondent that the first respondent uses the hairbrush “down there”;

(d) Red vaginas/abrasions on their genitals to which the appellant and/or second respondent relevantly deposed and applicable witnesses were cross-examined. The appellant also referred to a USB key and photographic evidence in her material. The parties made written submissions about redness, injuries and abrasions. It seems the appellant’s real complaint here is even though she deposed to this and there was cross-examination and written submissions about genital abrasions and genital injuries, because she had referred to a USB key in her Case Outline (which apparently contained, inter alia, a video and/or photographs about this topic), that USB key should have been received into evidence even though the appellant and second respondent deposed to the issue and made submissions about it; and

(e) The appellant had forgotten that she had cross-examined Ms AN (the first respondent’s partner) about a fifth allegation that Ms AN allegedly exposed her genitals to the child Z. The appellant also cross-examined Ms AN about the hairbrush allegations.

  1. In addition to those five matters identified by the appellant at the appeal, the appellant was cross-examined about various allegations made by her, including a more general allegation of the first respondent “potentially” grooming the children. A s 93A interview was watched by the primary judge.
  2. From this summary, it is plain that the evidence of alleged sexual abuse was not suppressed. Those grounds that contend it was, are not made out. That is at least Ground 4.
  3. The second matter clarified with the appellant was that if the appeal was upheld, that may well mean that the material in the Contended Appeal Book (if we determined it ought not have been rejected) would be untested. If so, we asked whether that would mean the matter would have to be remitted. The appellant rejected the idea of remittal, submitting we had a positive obligation to remove the children from a risk of sexual harm pursuant to s 273B.4 of the Criminal Code Act 1995 (Cth) (“the Criminal Code”).
  4. The appellant also made a lengthy oral reply, and was given considerable latitude to canvass matters which were more akin to primary submissions than submissions in reply.

GROUNDS OF APPEAL

  1. The appellant’s Amended Notice of Appeal filed 26 August 2022 contained 50 grounds of appeal. In her Amended Summary of Argument filed 26 September 2022 the appellant sought leave to add an additional ground at paragraphs 12 and 241 (“Abuse of Power by the Primary Judge”), and that Ground 16 was to be read as four sub-grounds labelled (a) to (d). We permitted the appellant to add the additional ground and will read Ground 16 as four sub-parts.
  2. The appellant’s written outlines and oral submissions did not, in the main, address specific grounds of appeal. Rather, she took a thematic, broad-brush approach. In doing so, it became clear that many of the appellant’s submissions and thus many of her grounds rested on some critical misapprehensions. For example:
    (a) A major component of the appellant’s many contentions and submissions was that the primary judge ought to have conducted himself as a royal commission and looked at every single document that had been filed over the course of the entire litigation period to establish “the truth”. She contended that we should do the same. The appellant was told on the 24 August 2022 hearing of her Amended Application in an Appeal that we would not be conducting a royal commission, but nevertheless persisted with her pursuit of this: “that is exactly what is required - and should be initiated by this Court to protect the integrity of the Court and as a matter of public interest in delivering the proper administration of justice” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 52). It was submitted that if such a course was followed and we examined every single document, then the children would be removed from the risk of sexual harm which, the appellant asserted, existed in the first respondent’s household;

    (b) As the primary judge had not undertaken that task of looking at every document from the initiation of litigation to the trial, it was the appellant’s submission that officers of the Court (barristers and solicitors alike), single experts, and “sworn-in officers” had contravened s 273B.4 of the Criminal Code by not causing the children to be removed from that risk of harm in the first respondent’s household;

    (c) Further, the appellant argued that s 273B.4 of the Criminal Code applies to judicial officers, meaning the primary judge contravened that provision by not removing the child from the “substantial risk that a person (the potential offender) will engage in conduct in relation to the child” (s 273B.4(1)(c)). However, the children are and were not under the primary judge’s “care, supervision or authority, in the defendant’s capacity as a Commonwealth officer” as set out in s 273B.4(1)(b). Further, the primary judge found that there was no risk of harm to the children in the care of the first respondent. So long as that finding stands the section is not enlivened, even if it did apply to a judge determining parenting proceedings (which for the reasons that follow we do not need to consider further);

    (d) The appellant confirmed in submissions that judges have “a positive obligation” to put on evidence. This is of course a function of the parties in an adversarial system where the parties choose how they will litigate. A judge has no role in adducing evidence;

    (e) That Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 (“Bahonko”) stands for the proposition that judges must “hunt through the evidence” and that “any occasion where the children are at risk of sexual abuse constituted reasonable grounds for ‘hunting through the evidence’” (Transcript 29 September 2022, p.4 line 24 and Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 24). We do not agree that Bahonko is cast as widely as the appellant would urge. Rather, the Full Court of the Federal Court of Australia said that:

    1. ... it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. 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.
(Emphasis added) (Citations omitted)
An appeal court would only undertake such a hunting exercise where it suspected “on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appealable error” (at [3]). As will become apparent, having reviewed the primary judge’s reasons, we have no occasion for suspecting, on reasonable grounds, that there is appealable error that would warrant us to hunt through all of the material for ourselves. The Full Court of the Federal Court of Australia observed that where a litigant is unrepresented, that brings no special privileges;
(f) It was also submitted that as these are parenting proceedings, the combined effect of s 69ZN(7) of the Act and “other principles” in s 69ZN meant the appellant could rely upon whatever affidavits and material she liked. Section 69ZN contains principles for conducting child-related proceedings, one of which, s 69ZN(7) is that proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. Section 69ZN sets out principles, not justiciable rights. It does not override orders made by the Court, for example, the making of trial directions which mandated the parties file “one (1) consolidated affidavit of evidence in chief” as occurred in this matter;

(g) The appellant also sought to argue that as she was a self-represented litigant, the primary judge was obliged to do certain things, including putting on evidence and effectively running the appellant’s case, otherwise that would be a discrimination in favour of the represented party. This contention however misapprehends the guidelines identified in Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) FLC 93-072 (“Re F ”), which are not a mandated code. Rather, what can be distilled from Re F is that a primary judge ought ensure, as far as is possible, that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;

(h) That appellant contended that the children’s wishes ought control the outcome. We disagree. The provisions of s 60CC make plain that the children’s wishes are but one of the myriad of considerations the Court must take into account when determining what is in a child’s best interests; and

(i) The appellant submitted that a judicial officer has an obligation to provide a lawyer to a party who is the subject of a s 102NA order prohibiting them from personally cross-examining the other party. In addition, the appellant contended that a judicial officer can/ought control the administration of the Commonwealth Family Violence and Cross-Examination of Parties Scheme which is administered separately in each state by the relevant legal aid body, including directing one state’s legal aid entity to provide funding for a lawyer pursuant to the scheme in another state. Neither contention is correct.

  1. Before we deal with the specific grounds of appeal, it is useful to come to the various submissions and grounds that rest upon a misplaced attack against the trial directions made on 19 March 2021 and earlier orders made in the proceedings.
  2. Order 29 of the trial directions made on 19 March 2021 provided for the parties to file one consolidated affidavit of evidence in chief from each of their witnesses by 4.00 pm 30 August 2021. Order 30(c) then said, inter alia, the parties are to provide a list of affidavits and applications and/or responses to be relied upon at trial within their Case Outline to be filed by 4.00 pm on 13 September 2021. It was the appellant’s submission that notwithstanding the clear terms of Order 29 (for the filing of one consolidated affidavit), Order 30(c) meant she could put every single document ever produced in the entirety of the litigation in her Case Outline and therefore be in evidence before the primary judge. Plainly, Order 29 meant there was to be one consolidated affidavit for each party and for each witness. Order 30(c) required that there be a list of those single trial affidavits filed in compliance with Order 29. In other words, if a party only had themselves as a witness, then only one affidavit would be listed in the Case Outline. If, however, the party had their own (single) affidavit and one each from say three witnesses, then four affidavits would be listed in the Case Outline. This was said in Re F, a case upon which the appellant relied, but for different purposes:
    1. ... While judges have a discretion as to whether they wish to permit additional affidavits to be relied upon, they are by no means bound to do so. It is simply not sufficient for a person to seek, as the husband did, to outline a plethora of affidavits in his or her outline of case and expect them to be received. We consider that the approach adopted by his Honour was well within the proper exercise of his discretion.
The appellant’s insistence that Order 30(c) permitted her to ignore the clear direction for one consolidated affidavit is misplaced.
  1. The appellant also complains about many earlier orders of the Court; for example:
    1. On 9 December 2020, [the primary judge] made prejudicial orders returning the children directly back to the harm of [the first respondent]...
...
  1. ... NOA11/2021 was decided incorrectly and irresponsibly, and the Property Orders were decided vexatiously by [the primary judge]. after that encounter. NOA26/2021 was also decided incorrectly and irresponsibly because actual (and at least apprehended) bias should have been established ...

(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraphs 50 and 88)
  1. We will not engage with the complaints about orders other than those giving rise to this appeal.
  2. For the same reason we will not do as the appellant invited:
    1. The Appeal Court should review every Application made by [the appellant] in 2020 and 2021, and particularly the Affidavit of the Appellant Mother filed 18 November 2020 E101 and 18 March 2021 E135 If they do search that evidence, per Bahonko v Sterjov, they will notice Orders of [the appellant] that were dismissed which would have narrowed the issues at Trial, hence very likely made out her case (supported by High Court judgment in Nathanson).
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 107)
  1. Similarly, we will not engage with the appellant’s scandalous submissions about judicial officers of other courts, such as the Queensland Magistrates Court, District Court and Supreme Court, other than to observe that the attacks on those judicial officers are unfounded. We will also not engage with the appellant’s many complaints about the orders made in those courts.

Sexual Abuse

  1. It is useful to deal with this issue at this stage. The appellant’s grounds of appeal and submissions proceed on the basis that the children were sexually abused by the first respondent and, at the least, there is such an unacceptable risk of future sexual abuse posed by him that the children should not spend any time with him at all. Indeed, at times, the appellant has referred to him as paedophile.
  2. We have already set out the matters identified by the appellant as constituting the evidence of abuse. The appellant suggested that if we read every one of the thousands of pages of evidence she had provided we would be satisfied of such abuse. We have not done so, for two reasons.
  3. Firstly, we observe that the appellant is not only familiar with the evidence, but she is also acutely across this topic. If the appellant could not precisely locate and identify for us in the material she has filed that which she contends supports her allegations, it is most unlikely that we would be able do so. As we have said, it is her task, as appellant, at least to raise a reasonable apprehension of error.
  4. Secondly, error is not established merely by persuading us that we would have come to a different finding to the primary judge. This appeal is from discretionary orders and the principles in House v The King (1936) 55 CLR 499 (“House v The King”) apply. Unless the primary judge mistook the facts or principles to be applied, error can only be established if we are persuaded that the decision is unreasonable or plainly wrong. Nowhere did the appellant attempt to demonstrate why the primary judge’s findings on this issue were erroneous. Rather, the appellant simply assumed that such was the case.
  5. In short, the appellant did not identify any further allegations of sexual abuse other than those recorded above, that were to be found in the myriad of affidavits she wished us to read.
  6. The primary judge dealt with issue of sexual abuse at [110]–[120], and held that a finding that the first respondent “has either sexually abused these children or is likely to do so, is not open” at [120].
  7. His Honour considered each of the matters raised by the appellant, which we have already noted.
  8. The primary judge accepted that statements about a “brown worm” were made. They were found to be confusing in the absence of any better context and that they did not support an allegation of sexual harm (at [117]).
  9. The allegations as to the hairbrush and masturbating while dancing naked were made by the second respondent. For the reasons given at [118] and [119] her evidence was not accepted.
  10. In making these findings, the primary judge relied on the absence of any relevant evidence from the police or the Department of Children, Youth Justice and Multicultural Affairs. His Honour also had regard to a s 93A interview with Y when she was five (held on 9 August 2018). In that interview, Y made no disclosures at all, but confirmed that the first respondent had assisted with showering but “always had his shorts and shirt on” (at [115] and [116]).
  11. The primary judge did not refer to red genitals or those with abrasions. We are mindful however that there was no suggestion that there was expert evidence that linked these matters to sexual abuse as opposed to normal incidents of life.
  12. His Honour also did not refer to the allegation that the first respondent’s partner exposed her genitals to the children. She denied she had done so. The primary judge, in relation to another issue however, found the first respondent’s partner to be a credible witness. In any event, it is hardly surprising that his Honour did not refer to this matter because we are unable to find any submission made by the appellant to the primary judge on the point.
  13. A trial judge is not obliged to deal with every factual matter in the proceedings.
  14. As we have said, the appellant made no attempt to show that the course followed by the primary judge was erroneous. The outcome is clearly not unreasonable or plainly wrong (although the appellant will see it quite differently). Consequently, all of the grounds and submissions of the appellant which have sexual abuse or the unacceptable risk of it as their premise must fail.
  15. We now turn to the specific grounds of appeal and will largely follow the thematic approach taken by the appellant and the ICL. Unfortunately, the appellant did not marry many of her submissions to specific grounds. Helpfully, the ICL did his best to do so. We will also do our best to locate the appellant’s many submissions within the most appropriate appeal ground.
  16. It has to be said, however, that the length and detailed complexity of the appellant’s submissions did not lead to clarity or to the easy understanding of them. Further, many of her complaints are simply misconceived as it obvious from the grounds themselves (for example, reliance on Hague Conventions when all of the parties and the children have only ever lived in Australia). We will, therefore, identify each ground at least in summary form. As will be seen, many are based on premises which are untenable or which the appellant did not seek to make out but simply assumed that they would be accepted at face value.

The primary judge, “sworn-in Court officers”, court experts and the police

(As per the original)

  1. Many of these grounds rest on the way in which the appellant contended the trial ought have run – as a royal commission styled event, with the primary judge “hunting through” every piece of evidence ever filed. For the latter proposition, the appellant relied upon Bahonko. We have already rejected these submissions as critical misapprehensions. The grounds, both in this list and elsewhere, which rely upon these flaws cannot be made out.
  2. However, it was further submitted that the primary judge’s failure to hold a royal commission styled hearing, and concomitant failure to examine every document tainted the outcome of the first instance proceedings and this:
    1. ...suggests acts of bribery (including potential ‘favours’, or possible threats against the Judge by [the first respondent’s] legal team), and a vexatious, malicious judgement made by His Honour towards [the appellant] and aim to punish her with a ‘life sentence’, meeting the test of Wednesbury unreasonableness.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 243)
  1. We do not agree.
  2. Similarly, the appellant submitted, in just one example of wild speculation on her part:
    1. ...
    1. Note His Honour [the primary judge]. also had a prior history of being the Chair of Legal Aid Queensland and President of Queensland Law Society.
      1. If bribery or some form of cover-up was involved; it may possibly be [the primary judge]. intentionally set [the appellant] up to fail E134, E135; by instructing Legal Aid (LAQ) and QLS Practitioners to operate in this manner towards [the appellant]. It is possible LAQ and QLS were being instructed as a puppet for His Honour.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 107(d))
  1. The grounds and submissions directed at the primary judge such as a “vexatious, malicious judgment made by his Honour towards [the appellant] with an aim to punish her with a ‘life sentence’”, “judicial kidnap” and “fraud” are ones of actual bias. Adopting what a different appellate court said in  Newett & Newett  (No. 6) [2022] FedCFamC1A 70 at [132], actual bias requires demonstration that the primary judge was:
    1. ... so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Such a finding is a grave matter, which should not be made lightly and requires cogent evidence (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]).
  2. We see nothing in the transcript or the appellant’s material that meets this test. Not finding in favour of a party does not mean that must be due to bribes and/or favours and/or threats.
  3. The appellant also complains that the primary judge was malicious and vexatious in describing that she ran her case as an “all or nothing case” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 244). What the primary judge actually said in his reasons was:
    1. [The appellant] chose to run her case on almost an all or nothing basis – that is to say, if the children were not to live with her or her mother ..., then she would not take up any order that required the children’s time with her to be supervised.
(Emphasis added)
  1. That is a fair characterisation of the appellant’s position with respect to orders made for her time, with which she did not agree. There is nothing vexatious or malicious in that. It does not meet the test of actual or apprehended bias.
  2. Further, there is simply no basis for the scandalous suggestions made against the primary judge or the first respondent’s legal team, the ICL or the single expert psychiatrist. We reject such assertions outright.
  3. Rather, instead of vexatious, malicious or punishing conduct of the primary judge, the primary judge was more than accommodating of the appellant (and the second respondent). In the reasons, this is recorded:
    1. I noted that [the first respondent] had complied with my trial directions by filing his one affidavit of evidence in chief on 30 August 2021, being the due date. [The appellant] had not complied and I specifically asked [the appellant] on 16 September 2021 when the Court might expect her material to be filed. Her reply was to the effect “you will get it when you get it”.
(Emphasis added)
  1. True to her word, the appellant filed late. Yet, the primary judge allowed the appellant, for example, to file and rely upon her out-of-time affidavit of evidence in chief and reply dated 19 September 2021, being the Sunday before the trial began, but not actually sent to the Court until the morning of trial on 20 September 2021 (Transcript 20 September 2021, p.19 lines 34–39). It ought have been filed by 4.00 pm on 30 August 2021.
  2. Similarly, whilst the primary judge would not permit the appellant to file voluminous documents on a Google Drive on the morning of trial, this nevertheless occurred on the second day of trial. The primary judge said:
    1. ...[the appellant’s] attempt to rely on over 1000 pages of documents sent by [the appellant] to the Court on the Sunday before the trial began. I ruled that [the appellant] could not rely on that material and it has not been read by the Court as a result. However, on the second day of the hearing, [the appellant] sought specifically to rely on a further affidavit and, without objection, she was permitted to do so.
  3. A further gravamen of these grounds is that the primary judge, legal representatives, the single experts and the police worked in concert to support the first respondent and to actively collude against the appellant particularly in relation to her allegations, and those of the second respondent, that the children had been sexually abused by the first respondent. We see nothing in the transcript or material that supports such extraordinary contentions. We reject them.
  4. As for the legal representatives and court experts, we see nothing untoward in their words or actions, and certainly nothing, which would support any of the grounds above which concern them. The appellant made sweeping statements about them, for example, their apparent “continual impropriety”, “deceit”, “fraud upon the Court”, “collusion” and “fabrication” (Appellant’s Amended Summary of Argument filed 26 September, paragraphs 62–68). The appellant’s list of examples in her Summary of Argument, for example, paragraphs 66–75, have not been proven and even if they had (which we do not accept), they do not demonstrate how the primary judge’s orders were infected by error. We do not accept that the primary judge brought anything but an independent and impartial mind to the hearing of the trial and his deliberative processes as revealed by his reasons.
  5. The crimes and breaches as contained within these grounds are not made out on the evidence. Saying it is so, does not make it so.
  6. As for the additional ground, Ground 51, the appellant submitted:
    1. [The first respondent’s] actions in this case, along with the Trial Judge’s judgment made in excess of jurisdiction breaching the principles of legality and proportionality, demonstrate an Abuse of Process, and Abuse of Power (Note: Additional Ground) per Rouse v Minister for Fisheries [2003] NSWSC 700 at [34] by misusing and abusing the Family Court as a tool and conduit to provide Children to perpetrators of abuse and remove a good mother from the Children’s lives, so the perpetrator can continue to control [the appellant], abuse the Children, and avoid criminal conviction.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 241)
  1. We cannot make sense of this submission but reject any ground and submission to the effect that primary judge was a conduit to provide these children to perpetrators.
  2. These grounds fail.

Failure to afford procedural fairness

(As per the original)

  1. With respect to Ground 24, this was a trial being conducted in the Brisbane registry. The documents produced pursuant to subpoena were produced to the Brisbane registry. They were there and available for the appellant (and the second respondent) to inspect. The appellant had three lots of lawyers appointed by Legal Aid Queensland to conduct her case at various times. The appellant told the primary judge she had been to the subpoena room once (Transcript 21 September 2021, p.211 lines 42–43). We do not accept the criticism of the appellant that procedural fairness required the subpoenaed documents be relocated to City EE at all, let alone “in advance of trial material being due”. Procedural fairness is essentially about the opportunity to be heard. It does not extend to sending subpoenaed documents to a litigant at and for her convenience. In any event, this is not a failing of the primary judge.
  2. Grounds 36 (considered below) and 43 go hand in hand. The ICL provided his tender bundle to the Court and parties on the Thursday (not Friday as the appellant alleges) before trial. This was in response to a direction by the primary judge at a trial compliance hearing on 16 September 2021, that the ICL prepare a bundle of documents that would likely be subject of a tender by him (Transcript 20 September 2021, p.5 lines 20–22). There was nothing “in surprise” about the ICL doing as he had been directed.
  3. When the ICL went to tender his bundle on the morning of day one of trial, this was said:
HIS HONOUR: Well, in those circumstances [being the appellant and second respondent had received the documents the previous week], unless there’s an objection, so we have some order here, I will mark those as exhibit 1 if you’re tendering those.
(Transcript 20 September 2021, p.5 lines 44–45) (Emphasis added)
  1. The primary judge clearly indicated objection could be taken. The appellant did not. The transcript reveals the appellant had no hesitation to speak or interrupt when she wished to do so. Even if the primary judge had not explicitly asked whether there was objection to the proposed path, Re F at [230] reminds that a failure to follow the Re F guidelines does not automatically mean procedural unfairness or an unfair trial.
  2. The appellant’s submission that the failure to tell her she could object was “acts of procedural unfairness making a material difference to the case outcome” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 170) is also not made out. Had the appellant objected, it was still open to the primary judge to allow the tender bundle into evidence, either en bloc, or individual document by individual document during cross-examination – as he proposed for the appellant’s Google Drive material. It is speculation that telling the appellant she could object, and that had she done so, would have made a material difference. The appellant does not identify with any specificity the documents in the ICL’s tender bundle to which she would have objected that would have made a material difference if an objection had been upheld.
  3. However, on the morning of the trial, the appellant sought to file a Google Drive being “thousands” of pages in which she “dumped everything in there” (Transcript 20 September 2021, p.22 lines 26–32). The primary judge did not allow her to rely on the Google Drive of thousands of pages in which the appellant had “dumped” everything, but clearly and appropriately told the appellant “if there is information that you think I should have as we go bit by bit, I will consider whether ... there is some basis upon which I have it before me” (Transcript 20 September 2021, p.22 lines 38–44).
  4. Later on the first day of trial, the primary judge said this when the second respondent alluded to the existence of a document:
HIS HONOUR: Well, it’s not in evidence, actually. But if – but it [the appellant] says she’s got something out of the thousands of pages she chose to put in yesterday sometime in which she can find it and – I may give her an opportunity to produce it.
(Transcript 20 September 2021, p.86 lines 36–39)
  1. The primary judge also invited the second respondent and appellant to put specific documents attached to an old affidavit to the first respondent, but they did not take up that invitation (Transcript 20 September 2021, p.89 line 24 and p.90 line 2). At the end of day one, the primary judge said this:
HIS HONOUR: ...overnight, if you say there are some specific, limited number of things which you say are so important that I have, you can identify for that – you can identify those in the morning. ... But if there are, you know, half a dozen bits that you say are important that I should have, well, then I might be prepared to allow you to put those in...
(Transcript 20 September 2021, p.140 lines 20–26)
  1. On the afternoon of day one, the primary judge a least thrice more invited the appellant to identify additional documents she wanted to rely upon overnight and send the other parties’ legal representatives a list of those documents by 9.00 am the next morning. The appellant did not. Nevertheless, when the trial resumed on day two, the primary judge allowed the appellant to rely upon a further affidavit.
  2. In circumstances where the appellant was given far more leeway to rely on affidavits contrary to the trial directions, and the opportunity to tender relevant documents during cross-examination, we do not see how the primary judge’s discretion miscarried or that any procedural unfairness was involved. Procedural fairness was not the sole preserve of the appellant. It would have been grossly unfair to the other parties to allow that material in, and in all likelihood, would have warranted a further adjournment if a party applied. Further, the appellant’s attempt to tender it offended s 50 of the Evidence Act 1995 (Cth) (“the Evidence Act”). We see no error in the primary judge’s ruling with respect to it.
  3. The two witnesses referred to in Ground 46 are two aunts of the appellant who apparently saw the car park incident.
  4. The car park incident took place on 1 December 2020. It transpired that both the appellant and the first respondent parked on the same level of a car park in order to attend court that day. They returned to their car at about the same time. Thereafter, versions of what occurred markedly diverged.
  5. The primary judge accepted the first respondent’s evidence. One of the reasons was that the appellant had not called her two aunts, who were present at the time, to give evidence. On 27 September 2021, the appellant applied to reopen the evidence so as to rely on a statutory declaration from one of the aunts and for her to be cross-examined. The statutory declaration was provided to the police. There was no explanation as to why no affidavit from the aunt had been filed in accordance with the trial directions.
  6. The application was rejected and the appellant has not provided any submissions demonstrating error in that decision.
  7. We are of the view the primary judge was clearly entitled to exercise discretion in the way he did. Suffice to say, the primary judge’s reasons are amply explained at [53]–[57]. Procedural fairness applies to all. The trial directions were clear about the filing of affidavits.
  8. We will not consider Grounds 47 and 48, as the appellant has not appealed the 29 September 2022 order dismissing her application to re-open.
  9. We add that s 69ZN concerns principles, which guide or assist a court. It does not require a judge to conduct a trial in the way sought by the appellant, which would have been procedurally unfair to the other parties. It was ultimately though for the primary judge to control how the matter progressed. Again, we see no appealable error in the primary judge’s approach or reasons therefore.
  10. These grounds fail.

Matters of discretion

(As per the original)

  1. We have already referred to the unfounded attacks on the judge, the court expert, the first respondent’s legal team and the police. We have also referred to s 69ZN and how the appellant has misread the trial directions as allowing for a free-for-all in her favour.
  2. At their heart, these grounds rest upon the primary judge’s exercise of discretion, or perhaps more specifically, that the primary judge exercised discretion in ways with which the appellant does not agree. In turn, the appellant expresses grounds that affect her sense of self. For example, under the heading of “Improper and Unjust Exercise of Discretion”, the appellant, submitted, inter alia:
    1. In Orders of 8 July 2022, His Honour punished [the appellant] and Children to a “Life Sentence” of being controlled and abused by [the first respondent]. E1, E2
    2. [The appellant] was stripped of her entire Motherhood, and the Children stripped of a happy Childhood living with [the appellant] per their express wishes in three Family Reports ([Mr B] in 2018 E146 and two reports of [Ms HH] in 2020 E49 and 2021 E50).
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraphs 117–118)
  1. Ground 10 is pleaded in similar terms. The appellant’s subjective feelings about the orders does not make for a miscarried discretion. We have already referred to the fact that the children’s wishes do not control outcomes. In any event, the children’s wishes were “only just” to live with the appellant instead of the first respondent. The Family Report writer referred to these wishes as “superficial, and/or symptomatic of the circumstances of this matter” (Updated Family Report of Ms HH dated 20 August 2021, paragraphs 96–100).
  2. The primary judge was well alert to each parent’s case that the other posed an unacceptable risk to the children. His Honour gave a thorough examination of their contentions and made findings including at [72]–[120], [138]–[144], [152(b)]. Those reasons are well open on the evidence and thus do not make out the appellant’s grounds about failures to find what the appellant proposed, or the making of findings that the appellant eschewed. In turn, the reasons well support orders that do not lead to promoting, for example, “violence against women and children”, or “place children at risk of paedophilia and family violence”.
  3. It is clear from the reasons as a whole, that the primary judge did not accept the appellant’s evidence or contentions as to family violence.
  4. As the appellant identified in her Amended Summary of Argument at paragraph 119, appeals against a discretionary judgment and the principles to be applied are well established: House v The King; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
  5. As an example, the appellant submitted that the following was an irrelevant consideration:
    1. ...
    (b) ... an email sent to the ICL by [the appellant] containing her opinion about the domestic child trafficking (in breach of s271.7 Criminal Code Act 1995 (Cth)) enabled by lawyers using this process in the Family Law System as a conduit to transfer children to abusive men (which is true on the peer reviewed, statistically significant, objective evidence from various Inquiries and Academic Studies published in Law Journals); ...
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 125(b))
  1. This goes very much to the appellant’s belief system, and thus her responsibilities of parenthood and capacity to parent, which are relevant s 60CC factors. They also go to a primary consideration of protection from harm. That was not, of course, a finding by the primary judge.
  2. An example of the primary judge’s findings which are challenged is Ground 7, where the appellant submitted:
    1. His Honour failed to consider that [the first respondent] refused to encourage a relationship between the Children and [the appellant] (Ground 7), in that he insisted upon supervised contact which was Ordered on the basis of his own fraud towards and upon the Court: fabricating [the appellant] had a delusional disorder E94, E182 and was concealing the facts about his acts of violence.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 248)
  1. Whatever the appellant may have contended about the first respondent fabricating a delusional disorder or concealing his acts of violence, the primary judge’s findings about these issues at [106] and [161(h)] are more critical. These are:
    1. I am not satisfied on all this evidence that I should find [the appellant] suffers “delusional disorder”. [Dr A] expressed caution in making such a definitive assessment.
...
161. ...
(h) [The appellant], at paragraphs 146 to 156, submits in effect a finding is not open that [the appellant] suffers from a “delusional disorder”. No such finding has been made, as the Reasons demonstrate;
  1. As for the first respondent concealing his acts of violence, the primary judge was well alert to the appellant’s case and made the following findings at [73], [77(a)], [82] and [86]:
    1. [The appellant] has consistently claimed she has been the victim of domestic violence (described in a number of ways), during the relationship and since separation, perpetrated by [the first respondent]...
...
77. ...
(a) ... Whilst I am satisfied some physical interaction occurred, I do not accept it was at the level asserted by [the appellant]. ... I am not satisfied any similar incident did happen thereafter, including as I will examine, the incident on 1 December 2020...

...
  1. I make the following findings about the incident on 1 December 2020, on the balance of probabilities, and specifically find that I prefer the evidence of [the first respondent] where his evidence differs from the evidence provided by [the appellant] and [the second respondent] on this event, namely: [and then lists his specific findings in relation to the car park incident]

...
  1. Before I leave this discussion – one which [the appellant’s] submissions make clear she regards as seminal to this whole case, at times repeating to me that this is a “domestic violence case” – I find that [the first respondent] did not commit financial abuse against [the appellant]. I rely upon my earlier findings made in the property adjustment Reasons as well as the findings by the Magistrate and the District Court Judge which reveal how the dispute between the parties about financial issues was highly contentious.
  1. The appellant also contended that the primary judge’s references to the reasons and outcomes in other courts with respect to domestic violence proceedings were “the irrelevant findings lower court judicial officers” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 187). Section 69ZX(3)(b) of the Act clearly allowed the primary judge to adopt “any recommendation, finding, decision or judgment of any court”, as he did. We also do not accept that when the primary judge found at [152(b)]:
    1. ...
    (b) the children would be exposed to [the appellant’s] both highly negative views of [the first respondent] and those around her, and [the appellant] has no capacity (and likely no real willingness) to disguise or filter her views. Her entrenched perceptions about authorities would also likely be passed on to the children. The children, as a result would be at risk of substantial emotional harm, even if it were possible for orders for the children to spend substantial and significant time with [the first respondent] (which of course [the appellant] opposes). Furthermore, there is little likelihood [the appellant] would comply with Court orders and, as such, the conflict between the parents is only likely to continue, and it is even possible considering the history, escalate.
that the primary judge “attempted to reverse the Repeal of the Friendly Parent Provision” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 128). Protection from harm is a primary consideration under s 60CC(2)(b)(2A). Other s 60CC(3) considerations include: the capacity to provide for the needs of the child including emotional and intellectual needs; the responsibilities of parenthood demonstrated by each of the child's parents; and, making an order that would be least likely to lead to the institution of further proceedings in relation to the child.
  1. In making the findings for the reasons he did, we also cannot see how the primary judge did not apply what was said by the Full Court in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 about the findings of past facts pursuant to s 140 of the Evidence Act but then undertaking the predicative exercise when looking to the future (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraphs 220–221). The primary judge’s finding about sexual abuse and the first respondent – all open on the evidence – meant the primary judge did not need to conduct the future predictive exercise with respect to the first respondent. The primary judge’s findings about emotional harm caused by the appellant – all open on the evidence – required he look to the future and undertake that predictive exercise, which he did; see for example at [189].
  2. Further, it is a misapprehension of the appellant that “[t]he risk identified by His Honour against [the appellant] is not a risk available to be made at law due to the Repeal of the Friendly Parent provision in the 2012 Family Law Act amendments” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 198). We have included some of the primary judge’s findings about the appellant in the extract above (at [152(b)]).
  3. Turning specifically to Ground 20, the reliance on Wednesbury unreasonableness in this ground and in many submissions is misplaced. As Kirby J explained in CDJ v VAJ (1998) 197 CLR 172:
    1. ...
    2. ... It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power [so called Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. See discussion in Re F (A Minor) (Wardship: Appeal) [1976] Fam 238 and in G v G (Minors: Custody Appeal) [1985] FLR 894 at 900]. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
  4. The primary judge was and is not an administrator to which principles of administrative law may arise.
  5. Ground 38 cannot be made out given the primary judge’s detailed consideration of the appellant’s (and second respondent’s) submissions as set out at [158]–[166]. We do not consider the primary judge to be in error when he rejected the appellant’s additional material of 15 November 2021. The primary judge did not make any directions supporting the filing of this material. The appellant fails to understand, again, that case management and filing directions are not made to then be ignored. They are not optional.
  6. Ground 44 refers to making conflicting findings: “for example: words to the effect of ‘[the appellant] is not paranoid’, and later in judgment placing in brackets ‘(paranoid?)’”. This misstates the primary judge’s findings at [25], [77(a)], [79] and [105]:
    1. On 2 August 2019, with matters still unresolved, [the appellant] was admitted to the mental health ward again. The admission notes suggest she was admitted because “friends’ concerns regarding erratic mental state and paranoia in community”. As [the appellant’s] mental health is a major focus of these proceedings, this issue is dealt with more fully later in these Reasons...
...
77. ...
(a) ...The Magistrate examined extensively the “strangulation” event and ultimately formed the view [the appellant] “is prone to exaggeration and paranoia” who “has demonstrated very clearly that she has no self-control and is unable to regulate her emotions...

...
  1. I adopt the findings of the Magistrate and the District Court Judge, set out earlier and place reliance on them because, in my view, those findings would be open generally on the evidence before me, which I am required to assess. I do not adopt specifically the view of the Magistrate about [the appellant’s] alleged paranoia – preferring, as I had medical evidence – to make my own findings as the following paragraphs 91 to 105 of these Reasons examine.

...
  1. I take all this evidence into account which I assess (with all the evidence), as establishing that [the appellant’s] fixation (if not paranoia which I make no exact finding about) presents as a significant risk to the children of psychological harm and supports a finding she would be unable to facilitate and support the children having any relationship with [the first respondent].

(Emphasis added)
  1. It is also the case that the appellant misunderstands the role of United Nations Charters in domestic litigation. Australia’s obligations under the Charter are, in this case, given effect in the various provisions of the Act. The appellant is also incorrect as a matter of law that the children have a “right to be raised by their Mother”. As identified in the overarching objects and principles of the parenting provisions in the Act, children have a right to a meaningful relationship with both parents if they can be protected from harm (s 60B).
  2. The appellant also made submissions about the “improper application of Moose & Moose” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 283). That is a reference to Moose & Moose (2008) FLC 93-375 (“Moose”) which contains a statement of the well know principle that long term supervision is generally undesirable and that cogent reasons should be given for such an order. It is not clear which specific ground this relates to but we will consider it as part of these discretionary grounds. It was the appellant’s submission that:
    1. ...He knew the principle because the ICL barrister ... outlined that in proceedings E193 but proceeded to do so anyway which is an act of Judicial Misconduct warranting removal pursuant to s72 Constitution. His failure to apply a review process was a breach of that case authority...
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 283)
  1. The appellant did not propose a review process; nor did the first respondent or ICL. To the contrary, the appellant’s position was that if supervised time was ordered, she would not avail herself of that. It is the children therefore who suffer loss, but such is the consequence of the appellant’s decisions.
  2. The primary judge was well aware of what was said in Moose (at [188]–[191]). In the circumstances of this case and on the findings made by the primary judge, all of which were open on the evidence, the primary judge’s reasons are cogent and we see no error. His Honour declined to make a “sunset order” on the supervision because he was not satisfied that “[the appellant’s] destructive views of [the first respondent] and others that have fuelled much of her legal endeavours in this and other courts will ever reach a level that the children, as children, are not at risk of emotional harm” (at [189]).
  3. We are satisfied that the primary judge’s discretion did not miscarry.
  4. These grounds fail.

Errors of law including, failure to apply the Law, failure to follow the Law, failure to Comply with the Intention and Purpose of the Family Law Act

(As per the original)

  1. We have already referred to and rejected the appellant’s misunderstanding of s 273B.4 of the Criminal Code.
  2. As for Grounds 3, 5 and 28, we see no error in the primary judge’s application of the relevant sections of the Act. His Honour expressly undertook the relevant considerations mandated by those sections and applied those findings to formulating orders that he considered were in the best interests of the children.
  3. As for Ground 32, we cannot see how the primary judge applied the incorrect standard of proof to the evidence of the appellant. Ground 32 also seems at odds with the submission at paragraph 317 that:
    1. His Honour failed to determine matters of family violence to be beyond reasonable doubt as proven by comparing [the appellant’s] evidence E67 against s4AB Family Law Act.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 317)
  1. These grounds fail.

Suppression of evidence or fabricating findings

  1. We have already considered and rejected Ground 4 in so far as it concerns the appellant’s allegations of sexual abuse. As for the medical evidence, the appellant cross-examined the single expert psychiatrist trying to draw a link between the first respondent’s medical issues and his allegedly controlling and coercive behaviour. She was unable to join the dots with the expert, and unable to persuade the primary judge. The evidence was not suppressed – it was simply not able to be adduced by the appellant. That part of Ground 4 which relates to medical evidence being supressed also fails.
  2. We have also rejected all notions that the primary judge acted without integrity. The same applies to the grounds here which contend the primary judge fabricated findings. Under the theme of “Discretion” we have determined that the findings made by the primary judge (contrary to the appellant’s views) and his failure to make findings (urged by the appellant) were all open on the evidence. We will not engage with grounds based on defamation and abuse.
  3. Ground 6 is supported in the Amended Summary of Argument at paragraph 199 and following. It includes the proposition that:
    1. ...“Emotional Harm”. The AIFS and WHO definition of emotional abuse does not include this as a definition. His Honour fabricated findings using his unqualified opinion to define a term, when he is not a medical expert.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 199)
  1. The definition to which she refers is found in her previous paragraph being:
    1. ...the findings were made on no available evidence of [the appellant] having been negative towards [the first respondent] in the presence of the Children.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 198)
  1. At [152(b)] his Honour found that, if the children were in the appellant’s care they “would be exposed to [the appellant’s] both highly negative views of the [first respondent] and those around her, and [the appellant] has no capacity ... to disguise or filter her views. Her entrenched perceptions about authorities would also likely to be passed on the children”. These findings speak to the future and not the past. They are an inference taken from the evidence as a whole.
  2. We repeat that the primary judge’s findings about the appellant were amply open on the evidence.
  3. Ironically, another of the appellant’s complaints is that the primary judge did not apply the Act and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), yet here she agitates the primary judge ought have gone outside of the Act. Emotional harm falls within the capacity of a parent to provide (or not) for a child’s emotional needs in s 60CC(3). It also falls within the definition of abuse in s 4AB. The s 60B principles of Part VII of the Act is to protect children from physical or psychological harm. It was the Act, which the primary judge, appropriately, applied and discussed comprehensively in his reasons.
  4. Much of the appellant’s complaints again rest on the basis that because she was not permitted to rely on whatever she wanted by way of evidence, evidence was therefore suppressed. Put another way, it was appellant’s position that she could ignore the very clear trial direction requiring one consolidated affidavit only, by simply listing everything she wanted, in her Case Outline. If that were so, it would render trial directions for one consolidated affidavit to be meaningless. Similarly, case management and the active and proper control of what is in evidence and what is not would become a nonsense if a party could ignore trial directions and file whatever they wanted, whenever they wanted.
  5. It also must be borne in mind that the first respondent was entitled to know the case being presented by the appellant (and second respondent), and the evidence said to support that case, so he could meet it. Procedural fairness applies to all parties.
  6. Thus, with respect to the material that the primary judge received into evidence and what he rejected, in particular the thousands of pages on a Google Drive which the appellant just “dumped everything in” (Transcript 20 September 2021, p.22 lines 27–28). We are of the view that the primary judge was clearly entitled to exercise his discretion to reject the tender. We have already referred to how the appellant was accommodated by filing late material and was given the opportunity to tender individual, specific documents.
  7. The bulk tender of hundreds of documents as was attempted by the appellant is clearly untenable. Not only do issues as to the relevance of those documents arise (and hence admissibility under s 55 and s 56 of the Evidence Act), there is need for the other parties to the proceedings to be able to deal with the documents in an ordered way. Quite simply, one party does not have the right to flout entirely, proper and everyday case management directions by being able to rely on whatever material he or she wants whenever he or she wishes. Not only is that grossly unfair to the other parties, it would mean proceedings would become entirely unmanageable and inordinately long, to the cost of all involved in the proceedings, including and especially the children the subject of them, as well as to the detriment of other litigants and children whose matters are waiting to be heard.
  8. Against that backdrop, our earlier comments bear repeating; that is that the primary judge should not be required to trawl through the documents to guess at their relevance and/or connection to the appellant’s case. Had the primary judge received all of the documents in the Google Drive, it would still have been necessary for the appellant to put specific documents to the witnesses to establishing not only the relevance of the document, but also to ground the ultimate submission that she wished to make. By refusing to receive the entire “dump” of documents from the appellant, the primary judge properly left the forensic decisions about how the appellant’s case was to be run, to the appellant.
  9. It follows that, as the tender of the material in the Contended Appeal Book was correctly rejected by the primary judge, there is no need for us to consider it further, as was noted earlier.
  10. We have already referred to, and rejected, the appellant’s many submissions that notwithstanding the trial directions for one consolidated affidavit, she was nevertheless entitled to rely upon as many affidavits as she liked simply by listing them in her outline. It does not follow, as the appellant contends, that her inability to comply with the trial directions equates to a suppression of evidence. Nevertheless, the appellant (and second respondent) deposed to her allegations of sexual abuse, witnesses were cross-examined and submissions made. The s 93A video was watched.
  11. These grounds really come down to the fact (like many other grounds) that the primary judge did not make the findings the appellant sought.
  12. It was plainly open on the evidence for the primary judge to find, as he did, that the appellant posed an unacceptable risk to the children, and, that the first respondent had not sexually abused them. On the latter finding, the primary judge was well aware of the caution against making such positive findings, but determine in the exercise of discretion that it was open to him to do so. We agree.
  13. These grounds fail.

Bias and discrimination

(As per the original)

  1. With respect to Grounds 15 and 16, the appellant submitted:
    1. Also going to matters of apprehended bias and procedural unfairness (Grounds 15 and 16), and breaching the requirements under s69ZN FLA (mandatory principles to be applied in child-related proceedings), [the primary judge]. has failed to include and adduce evidence relating to Child Risk of Sexual Harm that he himself ordered the Appellant to produce to him in Order 3 of 12 May 2020 E11; and has failed to confirm other evidence adduced in cross examination as having been tested to a balance of probability that [the appellant] and Children are at risk of serious harm in relation to the persistent obsessive behaviours of [the first respondent] that he made admission to on the Witness Stand, and in his own sworn affidavits; adduced by the Appellant per Order 30(c) made 18 March 2021.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 144) (Emphasis in original)
  1. As we have said, s 69ZN of the Act sets out principles. As we have also said, it is not for a trial judge (or appellate judges) to adduce evidence. We have also indicated that Order 30(c) of the trial directions was not an invitation to ignore the trial direction for one consolidated affidavit.
  2. The submission with respect to Order 3 of the order of 12 May 2020 is also misconceived. It provided:
    1. That within fourteen (14) of the date of this Order [the appellant] produce to the subpoena section of the Brisbane Registry of the Family Court of Australia copies of videos [the appellant] says she took of the children making disclosures of [the first respondent’s] behaviour which [the appellant] is concerned suggest possible inappropriate behaviour or sexual abuse by [the first respondent].
  3. That order does not order the appellant to produce material to the primary judge nor does it require the primary judge to “include and adduce” evidence.
  4. Separately, we also do not accept that if the primary judge only ordered part of the transcript that that demonstrated bias and pre-judgement (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 137).
  5. We have already considered the primary judge’s proper rejection of the appellant’s attempt to tender a Google Drive the morning of trial. That the appellant did not like the primary judge’s entirely appropriate case management and trial directions, does not make for bias (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 142). We again refer to the appellant’s oral submissions, which reveals she was able to present her specific allegations of abuse. It is therefore hard to see how the primary judge’s conduct “amounts to actual bias, apprehended bias and Judicial Misconduct punishable by removal from office under s72 Constitution of Australia Act 1900. (Grounds 15, 16 and 17)” (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 232).
  6. Another of the appellant’s submissions in relation to bias was:
    1. His Honour demonstrated a tendency of malicious behaviour towards the Respondent Mother, as he admonished and chastised her the during Trial on 22 September 2021 with a rant directed at her, stating words to the effect of “you accused me of Corruption”. E181
    2. To bring this up during the course of a Public Trial where the Trial Judge is supposed to remain impartial would amount to certain apprehended bias and prejudicial, spiteful determinations being made against [the appellant].
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraphs 245–246)
  1. We have already referred to the test for actual bias. This complaint also does not meet that test. With respect to “rant” about “corruption”, the transcript reveals that when the primary judge asked the appellant if she preferred to take an oath or affirmation this occurred:
[THE APPELLANT]: Are you leaving the child sexual abuse evidence out?
HIS HONOUR: No, Madam. Madam, are you ready to be sworn or affirmed; what would you prefer?
[THE APPELLANT]: I just want a confirmation - - -
HIS HONOUR: No, no, Madam.
[THE APPELLANT]: - - - are you leaving the child sexual abuse evidence out of the proceeding?
HIS HONOUR: I’ve asked you a question. Affirm the witness. Madam, I am not going through this trial continuing - - -
[THE APPELLANT]: Interesting.
HIS HONOUR: I am going to ignore your provocative comments which suggest, as you have done before, that I’m corrupt and I’m this or that. I’m not even going to - - -
[THE APPELLANT]: That’s in evidence.
HIS HONOUR: - - - get involved in that, Madam. I’m going to ignore it. Now, compose yourself because in two seconds, you’re going to be asked some questions and you’re going to be asked to answer them either on oath or on an affirmation. Which one would you prefer?
(Transcript 21 September 2021, p.172 line 27 to p.173 line 6)
  1. The appellant argued with the primary judge for another almost two pages of transcript before saying she would take an oath. A precursor to the primary judge’s comment is that in two previous applications filed by the appellant, the appellant applied for the primary judge to recuse himself as he was “actively encouraging and ignoring the presence of Bribery and Corruption”:  Newett & Newett  (No. 5) [2021] FamCA 383 at [8(b)].
  2. It appears to us that the appellant contends that she should have been permitted to say vile things to a judicial officer, including those which strike at the very heart of the judicial oath or affirmation, without comment or admonishment. We do not agree. The transcript reveals that the primary judge remained impartial and composed in difficult circumstances. Respectful and courteous comments made by judicial officers attempting to maintain civility and composure during court hearings do not constitute bias.
  3. Of Ground 49, the appellant submitted:
    1. His Honour failed to consider [the appellant’s] reasonable fear of unlawful persecution by Queensland Police who advocated for [the first respondent] throughout the Family Law Proceedings and corrupted State Records to bolster his case including committing perjury in Domestic Violence Court proceedings. [The appellant] also had reasonable apprehension of family violence and being killed by [the first respondent] (or his associates in the ABF) by returning to the State of Queensland (available to be made on the evidence); and made judgment it was “her choice” not to see her Children or return to proximity of the Children.
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 280)
  1. We do not accept the premises contained within this submission and thus the ground – unlawful persecution, corrupted state records, perjury are not made out on the evidence.
  2. The appellant also submitted the primary judge:
    1. .. also committed serial Disability Discrimination E195 against the Grandfather and Social Class discrimination in his prior judgments... Where [the first respondent] is mobile and states he is capable, Orders should have been made for the Children to spend holiday periods under the full care of the Maternal Grandparents, regardless of the “negative views of [the first respondent]” by [the second respondent] and [the appellant].
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 284)
  1. The primary judge was alert to the plight of the maternal grandfather and consequent carer responsibilities of the second respondent (at [149]). However, the primary judge made the orders he did within the framework of the best interests of the children. How the consequences of that constitute discrimination is not clear to us.
  2. We also do not agree the primary judge gave the first respondent legal advice about vexatious litigation orders (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 291). In any event, the first respondent’s application for such an order was dismissed.
  3. These grounds fail.

Miscarriage of justice / jurisdictional issues

(As per the original)

  1. We will not again engage with the appellant’s baseless grounds that the primary judge was acting under the dictation of others. Suffice to say the appellant’s reliance on Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 is misconceived.
  2. As to the making of orders ultra vires, the appellant submitted:
    1. In my educated and well-researched opinion, the judgment of [the primary judge]. itself is careless, contradictory and completely unlawful with Orders made ultra vires.
    2. Orders were made ultra vires as His Honour failed to apply the law consistent with s42 Family Law Act 1975 (Cth) (“FLA”), and failed to follow the law pursuant to s273B.4 Criminal Code Act 1995 (Cth) (“CCA”).
(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraphs 122–123)
  1. We have already explained that s 273B.4 did not apply to the primary judge (or indeed us). We also do not understand how the primary judge failed to apply s 42 of the Act, which is a section concerning the exercise of jurisdiction “in accordance with this Act and the applicable Rules of Court”. It is not clear to us how the primary judge did anything other than exercise jurisdiction and power under the Act and Rules.
  2. As for Ground 8, a consequence of the primary judge’s findings is that the primary judge did precisely what is complained about – he made orders to protect the children from a risk of harm.
  3. These grounds fail.

Appellant’s possible witnesses

(As per the original)

  1. The ground relating to credit misunderstands the primary judge’s reasons. The primary judge did not make credit findings about those two people who were at the car park but did not provide affidavits. His finding was in relation to how the appellant chose to run her case.
  2. The primary judge said this in his reasons:
    1. In respect of the incident on 1 December 2020 in the car park opposite the Commonwealth Law Courts building, I had evidence from [the appellant], [the second respondent], [the first respondent] and in respect of a telephone call, [the first respondent’s] partner Ms AN. I regarded Ms AN as a credible witness. No adequate explanation was offered as to why [the appellant’s] two aunts, who accompanied [the second respondent] back to the car park, did not give evidence at the parenting hearing. This is even more surprising when [the appellant], in her application to re-open (discussed at paragraphs 54 to 56 of these Reasons), said that her aunt had given (subsequent to the hearing) a statement to Police. In my view the failure by [the appellant] to adduce evidence from her two aunts, enables an inference to be drawn that they had no evidence that could have supported [the appellant’s] case on this incident (Jones & Dunkel (1959) 101 CLR 298).
  3. The appellant said this in her Amended Summary of Argument:
    1. His Honour failed to find [the first respondent] to have orchestrated the event to traumatise [the appellant], despite his clear Motive. [The first respondent] followed that event by “attacking [the appellant]”, by creating further Police records E106 against [the appellant] (ICL Bundle, QPS and NSW Police materials), caused threats to her witnesses in the Carpark E104 so they would not testify against him – which was why [Ms BC] and [Ms QQ] from the carpark incident did not provide affidavits (Judgment of [the primary judge] as to Jones v Dunkel adverse inference); and he caused her inability to submit her Brief of Evidence as ordered by the Magistrates Court in his private criminal prosecution due the very next day.

(Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 91)

  1. It is a reality, not a mistake of fact that the two witnesses had not provided affidavits and were not witnesses in the appellant’s case. It was for the appellant to run her case and present relevant witnesses. Where she did not, the inference drawn by the primary judge was open to him.
  2. In any event, part of this ground is that the appellant should have been questioned about this matter. That was not for the primary judge to do. It is a matter for the other parties what they chose to cross-examine on. In any event, the appellant was in fact cross-examined about these witnesses (or lack thereof) by counsel for the ICL:
[INDEPENDENT CHILDREN’S LAWYER]: Now, on [the first respondent’s] version that he gave us yesterday, there were a number of people who were present on the car park level when an interaction took place with you, and it will be for his Honour to decide and make findings about what happened. But there were you, there was your mother; correct?
[THE APPELLANT]: Yes, my mum, yes.
[INDEPENDENT CHILDREN’S LAWYER]: Two other people - - -?
[THE APPELLANT]: And two aunties.
[INDEPENDENT CHILDREN’S LAWYER]: And two aunties were there of yours?
[THE APPELLANT]: Yes.
[INDEPENDENT CHILDREN’S LAWYER]: All right. Now, the two aunties - - -?---
[THE APPELLANT]: Yes.
[INDEPENDENT CHILDREN’S LAWYER]: - - - are they people who are – that would have been available to give evidence in your case?
[THE APPELLANT]: Yes, and probably still can. I could call them right now.
[INDEPENDENT CHILDREN’S LAWYER]: No, please, ma’am. Please, ma’am, you are entirely aware of the directions that his Honour made in terms of the filing of affidavit material, were you not?
[THE APPELLANT]: So the – could I ask my aunties - - -
[INDEPENDENT CHILDREN’S LAWYER]: Were you – no, please stop. You’re aware - - -?
[THE APPELLANT]: Can I explain?
[INDEPENDENT CHILDREN’S LAWYER]: No, you can answer my questions, ma’am?
[THE APPELLANT]: Yes.
[INDEPENDENT CHILDREN’S LAWYER]: You were aware of the directions that his Honour made for the filing of affidavit material for witnesses, weren’t you?
[THE APPELLANT]: Yes, I’ve been working around the clock.
[INDEPENDENT CHILDREN’S LAWYER]: Sure?
[THE APPELLANT]: So I don’t - - -
[INDEPENDENT CHILDREN’S LAWYER]: And this is an event - - -?
[THE APPELLANT]: There are things I - - -
[INDEPENDENT CHILDREN’S LAWYER]: This is an event that occurred last December that you’ve already - - -?
[THE APPELLANT]: She
[INDEPENDENT CHILDREN’S LAWYER]: that you’ve already agreed with me was very important?
[THE APPELLANT]: She wrote testimony. She wrote it in long form.
[INDEPENDENT CHILDREN’S LAWYER]: There’s no affidavit from either of those two aunties before the court, is there?
[THE APPELLANT]: She wrote a statutory declaration instead of an affidavit and signed it and I – I don’t even know if she handed to the ... Police. I don’t know.
[INDEPENDENT CHILDREN’S LAWYER]: Well, you know full well, ma’am, that’s not an answer to my question, don’t you?
[THE APPELLANT]: I’m telling you that I did get a statement from her.
[INDEPENDENT CHILDREN’S LAWYER]: No affidavit from either of those two aunties that were present in the car park and witnessed the exchange; correct?
[THE APPELLANT]: There is. There’s a statutory declaration just not before your court.
(Transcript 21 September 2021, p.252 line 7 to p.253 line 3)
  1. This ground fails.

Section 102NA

(As per the original)

  1. The ground relating to s 102NA formed part of the appellant’s procedural fairness theme. However, given the mandatory nature of s 102NA of the Act, we will consider this as a separate heading.
  2. On 8 June 2020, the primary judge made orders enlivening s 102NA of the Act. That order is not the subject of appeal before us. For whatever reason, the appellant and three separate sets of solicitors have parted ways. Legal Aid Queensland then declined to provide a grant of aid for a fourth set. That is not a matter over which any judge has any control.
  3. It was also beyond the primary judge’s power to order one legal aid entity to transfer the matter to another.
  4. The making of the s 102NA order meant that the mandatory provisions of s 102NA applied:
102NA Mandatory protections for parties in certain cases
...
(2) Both of the following requirements apply to the cross-examination:
(a) the examining party must not cross-examine the witness party personally;

(b) the cross-examination must be conducted by a legal practitioner acting on behalf of the examining party

  1. Once Legal Aid Queensland declined to provide funding for a fourth set of lawyers, there was little the primary judge could do. We do not accept that this demonstrated bias on the part of the primary judge (Appellant’s Amended Summary of Argument filed 26 September 2022, paragraph 278); his hands were tied by the mandatory provisions of s 102NA.

DISPOSITION

  1. The appellant has not made good on any of her grounds and the appeal will be dismissed.
  2. As we have determined the primary judge was not in error in rejecting the “thousands of pages” on a Google Drive in which the appellant “dumped everything” on the eve of trial. It is then unnecessary for us to consider the Contended Appeal Book and the material referred to in the List of Evidence that was not otherwise before the primary judge.
  3. For the same reason we will dismiss Order 2 (relating to audio files) of the appellant’s Application in an Appeal sent to the court on the morning of the appeal.

COSTS

  1. The appeal will be dismissed. In those circumstances, the first respondent sought his costs and filed a schedule of costs with $7,127.61 attributed to lawyer work and $6,234.08 attributed to counsel’s work.
  2. The appellant opposed a costs order being made against her if her appeal was dismissed. She made submissions that this was continuing economic abuse by the first respondent to her. That of course fails to engage with the reality her appeal has put the first respondent to expense.
  3. As the appellant has been wholly unsuccessful (s 117(2A)(e)), the first respondent will have his costs. Impecuniosity or poor financial circumstances, as the appellant contended, is no bar to an award of costs being made: D & D (Costs) No 2 (2010) FLC 93-435.
  4. No one made a submission about timing of the payment. In  Newett & Newett  (No 6) [2022] FedCFamC1A 70, the Court made the following order with respect to costs:
    1. The appellant pay the respondent’s costs fixed in the sum of $14,113.50 and that these costs be paid from the share of the funds being held by the Court in this matter, prior to the payment to the appellant of the balance.
  5. We will adopt the same approach for the source of the payment, but make an alternate order in the event there are insufficient funds held by the Court to meet the totality of the order.
I certify that the preceding one hundred and eighty-six (186) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Kari & Brasch.

Associate:

Dated: 13 March 2023

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