Didion & Sagan [2015] FamCAFC 232; (27 November 2015)

Last Updated: 17 December 2015

FAMILY COURT OF AUSTRALIA

DIDION & SAGAN

[2015] FamCAFC 232

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought to dispense with the requirement for the transcript – Where the father also sought to adduce further evidence – Where the material annexed to affidavit was not admissible as evidence – Application dismissed. FAMILY LAW – APPEAL – CHILDREN –Where the father appeals final parenting orders – Where the trial judge ordered that the mother have sole parental responsibility and that the father spend no time with the child – Where the father unable to consider the best interests of the child – Where the grounds of appeal difficult to follow and fail to identify error – Appeal dismissed.

Family Law Act 1975 (Cth) s 117(1) and s 117(2A)

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Mr Didion

RESPONDENT:

Ms Sagan

INDEPENDENT CHILDREN’S LAWYER:

Ms Meehan

FILE NUMBER:

TVC

43

of

2008

APEAL NUMBER:

NA

7

of

2015

DATE DELIVERED:

27 November 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Murphy and Forrest JJ

HEARING DATE:

27 November 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 January 2015

LOWER COURT MNC:

[2015] FCCA 110

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Pennell

SOLICITOR FOR THE RESPONDENT:

Shades of Gray Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pennell

Ms Keegan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Pennell

Legal Aid Queensland

ORDERS

(1) That the application in an appeal filed 24 August 2015 be dismissed;
(2) That the appeal filed 14 May 2015 be dismissed; and
(3) That there be no orders as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Didion & Sagan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 7 of 2015
FILE NUMBER: TVC 43 of 2008

Mr Didion

Appellant

And

Ms Sagan

1^st Respondent

And

Independent Children’s Lawyer

2^nd Respondent

EX TEMPORE

REASONS FOR JUDGMENT

MURPHY J

1. On 20 January 2015, Judge Coker made final parenting orders, the effect of which was to change existing co-parenting arrangements for the then almost seven year old child. The changes were very significant. Prior to the commencement of the proceedings from which the parenting orders emanate, the parties’ co-parenting arrangements had been governed first by orders made by consent in November 2010, when the child was aged about two and a half, and subsequently, orders made by his Honour in May 2013.
2. Those earlier orders were each broadly to the same effect and provided for the parties to have equal shared parental responsibility, with the child spending each alternate week with each of his parents. His Honour’s orders see the mother having “sole parental responsibility” and the child spending no face-to-face time with his father and with their only communication being in writing. The father appeals those orders. The orders were made in those terms despite the proceedings commencing with each of the mother and the Independent Children’s Lawyer (“ICL”) seeking orders which, in broad terms, provided for the child to spend each alternate weekend with his father.
3. Those orders reflect evidence before his Honour from both the mother and the single expert family report writer that the child loved his father, sought time with his father and would benefit from a regular relationship with his father. It should also be pointed out that two mediations occurred in the approximate 12 months before his Honour commenced these proceedings. They were unsuccessful in producing agreed co-parenting arrangements.
4. The apparent dissonance between the orders made by his Honour and those that may be suggested by the factual foundations and proposals of the mother and ICL is explained primarily by circumstances arising during the hearing, all of the father’s own creation.
5. The father adamantly and repeatedly contended that if the mother was awarded “sole parental responsibility” and/or if the existing equal-time arrangements were altered, then “[the child] can maybe find me when he turns 18” and that he would “walk away and see him at 18 years”.^[1] To similar effect, his Honour’s reasons record the “father’s statements contained within his affidavit material and ... statements made [to the family report writer] during interviews” that “...if he did not have equal time with the child, then he would give [the child’s] items of property away”.^[2]
6. Importantly, the father’s position just exemplified was expressed by him in the face of clear evidence from the single expert family report writer that any such actions on his part would be “devastating” for his son and that “...when the litigation is over, the father and [the child] can have a good relationship”.^[3] The father’s statement just quoted that he would “walk away” was succeeded by the family report writer saying that “it [is] important that [the child] have the opportunity for a relationship with both his parents” (emphasis added).^[4]
7. The father’s statements and attitude just referred to were accompanied by additional statements by him to the effect that, as his Honour expressed it, if “he did not get what he wanted in relation to parenting, then he would go back into a depressive state, he having suffered from depression in the past, and would be required to take more drugs” and, as his Honour records “[m]ore concerning still were indications by the father that he may suicide, making reference to the fact that Robin Williams, an actor, had recently taken his own life and that that might be a way out”.^[5]
8. His Honour’s reasons thereafter record:

I suggested that the father speak with the independent children’s lawyer about the proposals and how they might be able to be moulded to provide at least some opportunity for the father’s continued relationship with the child. When the matter was about to be stood down, the father said:

I’d like to see my son for the last time.^[6]

9. Having heard the submissions by counsel for each of the mother and the independent children’s lawyer, the father addressed the court. His Honour records “[t]he father’s submissions were then called for and they were succinct and troubling in the extreme. The father stood up and said:

We will keep in contact by writing.^[7]

10. His Honour proceeded:

The father sat down thereafter and indicated that he had nothing further to say and would not further participate in the proceedings. I was concerned at that attitude in relation to the matter. The father indicated that he would not see the child again and I suggested that I would give the father some further opportunity to think about what he should do. I suggested that in that regard I would make interim orders which were generally in terms of a cessation of time, because I did not see it is appropriate to make orders which would be the subject of breach, but much more importantly, the subject of ongoing hurt to the child if there was an expectation of time being spent and it did not occur.^[8]

11. Interim orders were made at the end of the proceedings, pending the delivery of the final orders and reasons, which were subsequently made and delivered about eight weeks later. Given that the court was not persuaded that the child’s best interests lay in arrangements which the father proposed, the orders made ultimately simply reflect a formalisation of what the father himself said would – and effectively should – occur in that event. Evidence of the type just described underpinned a central finding by his Honour that:

...Quite simply, the father was unable to focus on the needs of the child or the best interests of the child, but rather on his own hurt and dismay at there being suggestions that he may not be able to achieve what he wanted, in relation to the parenting of the child.^[9]

12. His Honour said:

Here there is a child desirous of a relationship with a father. Unfortunately, there is also a situation where the father is unable or unwilling, because of a lack of insight or a greater involvement by him in his own wishes than in the needs of the child, of failing to make himself available to the child.^[10]

13. The grounds of appeal and the written and oral submissions made by the father before us each bear witness to each of his Honour’s findings. The matters just referred to also provide a crucial foundation for our orders, which will be that the father’s application in an appeal be dismissed and that his appeal be dismissed. Before addressing each, it is also necessary to say that the father represented himself before his Honour and also did so before us. He prepared his own material in this appeal.
14. Meaning no disrespect to him, his material and, ultimately, his arguments are extremely difficult to follow. For example, it is not possible to relate many, if not most, of the paragraphs of his written summary of argument to any ground of appeal. Further, paragraphs that appear appropriately headed or labelled within the written outline, for example, as pertaining to ground 1 or ground 2, do not correlate with the content of the grounds in the amended notice of appeal. In a similar vein, many of the grounds of appeal cannot properly be described as such and do not assert appellable error. For example, ground 1 contends in these words: “Human rights for [the child] and [the paternal grandmother]”.
15. As will be seen, in seeking to assist the self-represented father, this Court sought to give such coherence as is possible to those grounds by seeking to reframe them and seeking from the father in oral argument expansion of them or their foundation. It should also be observed in that context, however, that the father’s material in this appeal and his oral submissions make it clear beyond doubt that he sees this appeal as a second hearing of precisely the same issues as those emerging ultimately below.

THE APPLICATION IN AN APPEAL

16. The father’s application in an appeal seeks an order dispensing with the requirement that the father obtain and produce the requisite copies of the transcript. We record that the absence of a transcript does not assist the appellant father. All parties, including the father, present before us (by video) are as prepared as they can be for the appeal, and all, including the father, seek that the appeal proceeds. The order sought in that respect is, therefore, effectively moot.
17. However, nothing said by the father suggests a proper basis for him not providing the transcript, I do not consider that, by making the order sought, I should give, in effect, my de facto imprimatur to the father’s failure to comply with the relevant decision. I would dismiss his application for that order.
18. A second order sought by the father is that he be permitted to adduce further evidence. In an affidavit filed 24 August 2015, the father expresses a desire to adduce documentary evidence described as “affidavits, statutory declarations and including letters and text messages as ‘exhibits’ to sort out the fact from the fiction”. Much – if not all – of the material annexed to the affidavit is not admissible as evidence at all. It might be observed that if it were admissible, much – if not all – of the material would not have assisted the father’s case and may well have harmed it. Similarly, the affidavit records “I would like the court to question [the child’s] Classroom teacher and [paternal] grandmother over the phone as a witness as I was denied this by Judge Coker on 14/11/2014”.
19. The evidence that one or both might give is not specified save, in respect of the teacher, in a letter to which I shall refer in a moment, and in the case of the paternal grandmother, in a statutory declaration previously filed by the father for the purpose of the proceedings. The letter to which the father would have this Court make reference is in these terms:

To whom it may concern. My name is [Ms K], and I am [the child’s] year 1 classroom teacher at [school]. I have been informed by [Mr Didion] that you may wish to speak to me in regards to an upcoming court case. If this being the case, could you please ring the school on the above number, leave your message and reception will inform me of your request. Alternatively, email is my most preferred method of communication as it’s not always easy to return phone calls promptly due to being in class. My email address has been provided, if you wish to make contact with me...

It should be observed that the letter is dated 14 November 2014, which was the last day of the proceedings before his Honour.

20. The principles governing the receipt of further evidence by this Court, referable primarily to the decision of the High Court in CDJ & VAJ,^[11] are well known and have often been repeated. In light of the father’s self-representation, it is perhaps, important to quote them relevantly here:

One consideration in construing section 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.^[12]

21. As I think will be apparent, the affidavit filed in support of the application could not possibly meet the tests there referred to. In particular, the affidavit reveals why the application should fail at the first hurdle; there is no identification of any admissible evidence, let alone any evidence which might, for example, demonstrate that “...the order under appeal is erroneous”.^[13]
22. I would dismiss the application for that order also.

THE GROUNDS OF APPEAL

23. The grounds of appeal as pleaded in the amended notice of appeal are, as they appear in that document, as follows:
    1. Human rights for [the child], and [the paternal grandmother].
    2. Lack of restraints on the child’s mother, [Ms Sagan].
    3. The use of false surmises in evidence in the ICL reports and preference of travel arrangements.
    4. The Judge’s surmise of an impressive witness as the real witness was not contacted – [the school teacher, Ms K].
    5. The father was unrepresented legally and when adjournment was not included in decision making as mother fails to deliver child over and over, the child don’t need protection from the father as to pick up. The father is devoted to his son.
24. The purported ground six is, in reality, a series of submissions. The subparagraphs within it contain assertions that may have the potential to contain appealable error but many relate to matters which were not in issue before the Trial Judge. For example, no orders sought by the father below sought to restrain the mother from “moving interstate” – leaving aside the issue that no such order expressed in those terms could be made. Intriguingly, the father now seeks orders (leaving aside the oddity of the manner of their expression) that might be seen to be more in line with those sought by the mother and the ICL at the trial which he then adamantly eschewed.
25. With the greatest respect to the father, nothing within his written or oral arguments pertain to any recognisable appealable error. Nor, with great respect, is it possible to understand just what the form and nature of the father’s complaints are more broadly.
26. To the extent that we can discern the gravamen of the complaints at all, they appear to be centrally focused upon the following. First, the reference to human rights appears to be no more than an assertion that his Honour ought to have awarded equal time as between he and the mother. No appealable error can be discerned.
27. Next, what the father asserts as “the evidence” from the school teacher is said by him to be crucial. To repeat, the so-called evidence amounts to the letter earlier quoted which again, we note, is dated the same day as the last day of the hearing, being the same day when the father went to the child’s school at lunch time so as to hand back the child’s belongings. There is nothing before us which suggests what relevant evidence that teacher might have provided or would provide. Next, in a similar vein, the father complains that his mother, who did file an affidavit, or more accurately, a statutory declaration, was not cross-examined and/or that her evidence was not taken into account by his Honour. That evidence, when read, is to the effect that the father was a good father and the child enjoyed his time with him. To repeat, that was not in issue. Indeed, it was those very things that were raised both by his Honour and the family report writer when the father insisted he would spend no time with the child if orders were not made as he contended. The reference to “false surmises” appears to be, putting it at its highest, that his Honour made material mistakes of fact in relying upon evidence of the mother. However, when asked for examples, the father referred to his Honour’s finding, as the father contended, that he (the father) said the mother was “a big fat whore”. No mention of any such thing, much less any such finding, was made by his Honour.
28. The father suggests, it seems, procedural unfairness by reason of his lack of representation. I would first observe that his Honour was, as it seems to me, at considerable pains to take more than sufficient account of that. As I sought to point out to the father in the hearing before us, both the ICL and, in particular, the family report writer, were at pains to, in effect, save the father from his own folly and, in the child’s best interests, to contemplate arrangements, other than those he himself proposed and adamantly pursued.
29. I can see no error, either as purportedly expounded in the grounds, in the written outline of argument filed by the father or as was sought to be adduced by the father orally.
30. I would order then:

(1) That the Application in an Appeal be dismissed; and

(2) That the appeal be dismissed.

FORREST J

31. I agree that the orders that Justice Murphy has just said he would pronounce should be made and I agree that they should be made for all the reasons just given by his Honour.

MAY J

32. I also agree with the reasons given by Justice Murphy and the orders which are as follows:

(1) The application of the father filed 24 August 2015 be dismissed.

(2) The appeal filed on 14 May 2015 be dismissed.

33. Finally, we need to deal with the question of costs. An application was made on behalf of the mother on the basis that she is in receipt of legal aid. Apart from the absence of merit in the appeal, as demonstrated by the reasons given by Justice Murphy, there would be no other reason to justify an order for costs, and I would not make an order. The independent children’s lawyer also asks for costs but properly referred us to the section of the Family Law Act 1975 (Cth) (“the Act”) in relation to financial hardship. We do have a statement of financial circumstances from the father, the appellant, which would demonstrate that he is in that category. I would make no order as to costs.

MURPHY J

34. I agree that in all of the circumstances of this case, and having considered section 117(1) of the Act and the specific matters enumerated within section 117(2A) of the Act, I would make no order as to costs as against the father at the suit of the mother. I agree, with respect, that the concession made by counsel for the independent children’s lawyer is a proper concession and therefore, no order should be made in that respect.

FORREST J

35. I also agree that there should be no order as to costs.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 November 2015.


Associate:
Date: 9 December 2015

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^[1] Reasons, at [25] and [37] - (Footnotes have been added to the settled reasons).

^[2] Reasons, at [27].

^[3] Reasons, at [26].

^[4] Reasons, at [37].

^[5] Reasons, at [29]-[30].

^[6] Reasons, at [39].

^[7] Reasons, at [61].

^[8] Reasons, at [62].

^[9] Reasons, at [46].

^[10] Reasons, at [75].

^[11] (1998) 197 CLR 172.
^[12] Ibid, at [109].

^[13] Ibid.