FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the mother sought to adduce further evidence – Where the evidence which the mother argued was given to the Court at the hearing is that which formed the basis of her application to adduce further evidence in the appeal – CDJ v VAJ (1998) 197 CLR 172 considered – Where the evidence would facilitate the correction of an error – Application allowed.
FAMILY LAW – APPEAL – PARENTING – Where the mother sought to re-open the parenting proceedings following her compliance with final orders made in 2014 – Where the mother was invited to compile the relevant documents establishing her compliance and hand them to the primary judge’s associate following the hearing – Where the Court record does not reveal those documents ever having been received either as evidence or as part of the correspondence file – Where the mother swears to having supplied the documentation to the primary judge’s associate – Where the primary judge found there was no evidence of the mother’s compliance – Where the primary judge was not satisfied of a sufficient change in circumstances – Rice and Asplund (1979) FLC 90-725 considered – Where it is accepted that the further evidence may have impacted upon the findings made by the primary judge and may have led to different orders – Where error is established – Appeal allowed.
|Family Law Act 1975 (Cth) ss 69ZN(4), 69ZN(7), 69ZQ, 69ZX(3), 97(3)|
CDJ v VAJ (1998) 197 CLR 172;  HCA 67|
Re F Litigant in Person Guidelines (2001) FLC 93-072;  FamCA 348
Rice and Asplund (1979) FLC 90-725;  FamCA 84
Taylor & Lethbridge  FCCA 2669
Hearing Location and Date
Brisbane, 18 January 2019
Brisbane, 28 February 2019
The appellant was unrepresented and there was no appearance for the respondent. The matter related to a child who was turning 12 this year. The parents separated when she was three years old and lived primarily with her mother until 2013 when a recovery order was made that she live with her father and have supervised time with her mother. Later, final orders were made that she live with her father and that he have sole parental responsibility. The time continued to graduate on a supervised basis, dependent upon compliance by the mother regarding her psychiatric therapy.
“8. In his reasons for final orders, Judge Lapthorn “formed the impression” that the child had been coached by the mother in relation to allegations made by her that X had been sexually abused at the hands of the father. His Honour made a specific finding that abuse had not occurred and that there was no risk of it occurring posed by the father.”
Other relevant concerns included:
as to the mother’s mental health and the treatment/management of her [disorder
T] (referred to in more detail below);
- The mother’s “almost ambivalent attachment with” X, although the child presented as “quite relaxed and settled when observed with her mother and there was appropriate engagement and interaction”;
- His Honour had “no confidence” that the mother would foster a relationship with the father, or X’s Aboriginal heritage;
- There was no risk of exposure to family or sexual violence while in the father’s care;
- There was a risk of psychological harm to X if the mother persisted with her allegations of sexual abuse by the father as his Honour considered likely;
- There were concerns as to the mother’s future accommodation arrangements, including that the mother “was considering living in a share house arrangement, hotel accommodation and even backpacker accommodation” while she looked for permanent accommodation;
- Records from the Department of Communities, Child Safety and Disability Services (“the Department”) showed that the mother had contacted the Department expressing concerns regarding her ability to care for X;
- The mother gave evidence that she “advertised on the internet for a family to share the care of the child with her and having received an expression of interest from a man in Canberra”. Although the mother did not follow through with that enquiry, his Honour accepted the ICL’s submission that “the mother appeared to have little insight or understanding as to the danger this may pose to the child”;
- X had “improved academically and socially since her enrolment [at school] in 2012 and in particular since the child went into the father’s full time care”. X has been diagnosed as being within the Autism spectrum. The mother had designed an educative programme for X while she was living with her but by the time of trial was attending a mainstream school with assistance from a teacher’s aide.
The mother filed a number of occasions and they have been rejected. The current appeal relates to an appeal from orders where the application was discussed and the appellant also sought to adduce further evidence.
The judge hearing the application found mother had not provided any evidence of her attendance with a psychiatrist nor has she provided any evidence at all that she does not suffer from a mental health condition.
At the heart of this appeal and the application to adduce further evidence within it, the mother asserts that she did adduce such evidence.
Usually, when an assertion is made that evidence has been adduced, it should be capable of immediate confirmation or rebuttal. It was not so in this case.
- The mother swears, in an affidavit read in her appeal, that she did in fact provide evidence to the Court which was illustrative of her having attended upon a psychiatrist who was satisfied of currently sound mental health and evidence which was, potentially at least, capable of satisfying the Court of compliance with order 11 of Judge Lapthorn’s orders. The evidence which the mother says was given to the Court is that which now forms the basis of her application to adduce further evidence in the appeal.
- The Court record, however, reveals no such evidence having been tendered or received. As might be anticipated, the circumstances in which the mother says the evidence was provided to Judge Spelleken are unusual.
- In her affidavit, the mother swears, at paragraph 10, that the documents were “tendered to the associate”. The transcript of the hearing before Judge Spelleken reveals the following exchange which occurred after her Honour had heard submissions and indicated that judgment would be delivered in the following week. In light of the mother’s assertions, the passage should be quoted in full:
HER HONOUR: I don’t need to hear from you, Mr [Taylor]. I will deliver a judgment at 2.15 next Wednesday. You don’t need to come down. The – I will put together the reasons once I know what I’m going to do. I’m not sure what I’m going to do at the moment and they will be sent to you and Mr [Taylor] in the mail.
[MS LETHBRIDGE]: I’m sorry, your Honour. I do have a lot of other evidence. I’ve got documentary evidence I could put in. I mean, all of this which I talked about in my affidavits – – –
HER HONOUR: What do you mean, documentary evidence?
[MS LETHBRIDGE]: I mean – I suppose – well, evidence – examples of emails, other correspondence, domestic violence orders, notes from the police, etcetera. In the last 12 months, the domestic violence order which [Mr Taylor] put onto me has been breached three times by me, apparently, because I have been doing everything I can reasonably do to communicate with [Mr Taylor] to facilitate the minimum contact with [X] which he has been denying us.
HER HONOUR: Well, Ms [Lethbridge], what – you say you’ve got documents there. This is your application. It’s incumbent upon you to put the documentation before the court. You don’t – I mean, the application you filed way back in August of last year, so it has been before the court for a good nine months. So why haven’t you put the documents before me before now?
[MS LETHBRIDGE]: I’m sorry, your Honour. I guess I’m still a learn and I’m waiting for the direction from the court to put those things in. I didn’t realise that I had liberty to put those in.
HER HONOUR: What kind of things are there?
(As per original)
- There was then a discussion about the documents to which the mother referred. Notably no specific mention was made of a document from the mother’s psychiatrist or more broadly to any psychiatric evidence, although the mother indicated to her Honour that “I’ve actually got loads of this material with me”. Her Honour then said this:
HER HONOUR: What I will let – what I would do – if you’ve got the documents there, what I will let you do is to go outside, put the documents together. I know they won’t be attached to an affidavit. Put the documents together. We will need to get a copy to [Mr Taylor], and unless I need to hear from him about a specific document, I won’t bother [Mr Taylor] with asking him to respond to it, but I’m happy for you to put any bits and bobs that you’ve got there together in a bundle and tender them, so to speak, but you will need to make sure that [Mr Taylor] has had a look at them.
[MS LETHBRIDGE]: Okay, your Honour.
HER HONOUR: All right
- After further discussion, including the mother complaining that her Honour was not “trying a lot better to help me”, her Honour said this:
HER HONOUR: And I understand that’s your position and I will read with a completely open mind everything that you’ve put before me. I am prepared, as I have indicated – and most people wouldn’t do this, but I’m prepared to give you every opportunity for you to go outside now, for you to put together any pieces of paper that you’ve got there that you want me to take into account. It’s not evidence, but if I let you tender it, I can take it into account as evidence, but you will need to do that. I mean, you’ve had nine months. I will give you, say, half an hour to go outside and put together some documents. Give them to my associate. We can get a copy to [Mr Taylor]. If I need [Mr Taylor] to respond to any of them, I will make contact with him and you and say, okay, [Mr Taylor], what do you want to say about this document or that document? If I don’t need him to respond to any documents, then obviously we won’t be involved in that – I won’t call the matter back, but I’m prepared for you to put your pieces of paper that you want me to have a look at and I will look at them and I will take them into account. All right.
- It will immediately be appreciated that her Honour’s actions were highly unusual. It should also be immediately apparent that, contrary to the mother’s assertion, her Honour was doing everything she could to assist a self-represented litigant who, the evidence at trial revealed, had mental health issues. It should be said that doing so was not only broadly consistent with obligations owed to self-represented litigants but also consistent with legislative mandates. In that respect, it is also important that the mother’s case was heard in a busy duty list where approximately 20 cases were competing to be heard and determined.
- The mother asserts that she did that which the quoted passages suggest would occur. That is, the mother asserts that she copied the relevant documents and handed them to her Honour’s associate. (It appears clear, that by the time this is asserted to have occurred, the husband had left the Court precincts).
- The instant difficulty arises because the Court record does not reveal those documents ever having been received either formally as evidence or, for example, informally as part of the correspondence file. Neither, however, is there any evidence or any other material on the file (save for the absence of the documents) that suggests that the mother did not do that which she swears occurred or that the absence of the documents is not explained by administrative error.
THE MISSING EVIDENCE AND THE FATHER’S POSITION
- 29. The evidence which the mother
asserts was available to her Honour – identical it seems to the evidence now
sought to be led as further evidence in the appeal – is, relevant to the
findings of her Honour at  and  earlier referred to. In summary, that
- A letter from Dr S, the mother’s psychiatrist, which says that the mother “has been maintaining a stable mental health since she was referred to me in June 2016” and that he had “no concern about her mental health and hence [he was] discharging her back to” a Dr K (who is presumably the mother’s usual general practitioner). That document is undated.
- A copy of a list of appointments attended by the mother with Dr S.
- A copy of the temporary domestic violence protection order against the father.
- A copy of the District Court order revoking a domestic violence protection order against the mother made by the father.
- A copy of a letter from the mother to the Southport Police regarding the alleged domestic violence order breach.
- There is no evidence of the mother having advised the father pursuant to Order 12 of Judge Lapthorn’s orders that she had complied with her psychiatric treatment requirements which were a pre-condition to her spending more time with the child.
The father did not appear at the appeal but he had earlier attempted to file an Outline of Argument by way of email on 15 January 2019. As it was late, it was not accepted for filing. However, the mother did not object to leave being given to receive it. She had earlier received it. He was given leave, in his absence, to rely upon the outline of argument.
- The father’s arguments can be
summarised as follows:
- Judge Spelleken could not have intended to allow documents presented after the completion of the hearing into evidence particularly where the father was not given an opportunity to view or respond to them;
documents sought to be adduced by the mother could not constitute evidence
before Judge Spelleken as:
- There is no evidence they were tendered to her Honour prior to the completion of the hearing;
- There is no evidence the documents were available to the father;
- The mother herself swears to inspecting the Court file and the documents she contends were handed up were not on that Court file;
- There is no evidence that the father had addressed the content of the documents in written or oral evidence.
- Judge Spelleken did consider the mother’s domestic violence allegations and the mother did not present any evidence that her Honour failed to do so.
- The father’s points are, with respect, well made. If the documents were received by her Honour subsequent to the hearing and if her Honour intended to read them and take them into account – as her Honour expressly said she would – she could do so only after giving the father an opportunity to be heard in respect of the matters they contained (as, again, her Honour said she would).
- Her Honour would of course have done so (as the transcript plainly reveals) but, from her Honour’s perspective, the documents had never been provided to her.
- 36. The self-represented mother’s grounds of appeal as contained in her Amended Notice of Appeal filed on 9 October 2018 are discursive, and it is, with all respect, difficult to understand what appealable error is being asserted. In her Outline of Argument filed on 18 December 2018, the mother articulates what she refers to as the “primary grounds” as being a failure to provide procedural fairness by “failing to fully consider the evidence presented in the application” and “failing to fully consider the domestic violence concerns”.
- The “evidence” there referred to is the documents she asserts were “tendered” before her Honour and are, as I have already said, the same documents as the mother now seeks to adduce as further evidence.
- If the documents were received as evidence, albeit in an unorthodox manner as was apparently contemplated, her Honour has plainly erred in stating as a material fact upon which her decision was based, that the mother had failed to “provide any evidence of her having attended upon a psychiatrist for the purposes of adhering with Order 11 of the final Orders”, when in fact the mother had done so.
- In order to ground success in this appeal, however, it is necessary to accept as a fact that the documents had been “tendered” as the mother contends and were, despite her Honour’s statements to the contrary, before her as evidence. If that fact was established before me, the father would, however, have good grounds to set the decision aside by reason of him not having been afforded the opportunity to consider and make submissions in respect of the documents.
- The central difficulty is that real doubt attends each of the respective assertions before me. I find it difficult to accept at face value that if a relatively large number of documents were provided to her Honour’s associate that they would not be on the Court file. Yet, I accept that administrative errors occur, particularly in what is frequently the chaotic atmosphere of large duty lists, and there is no evidence before me that it didn’t occur in this case. Equally, I am not inclined to dismiss the sworn evidence of the mother that she did hand the documents to the associate. It was certainly the course contemplated by her Honour and I see no reason in the circumstances of this case to reject the sworn evidence as inherently improbable.
- I consider that the course most consistent with the interests of justice is to postpone any decision on error based on material error of fact (or, perhaps discretionary error in failing to take account of relevant matters) until I have first determined the application to adduce further evidence.
THE APPLICATION TO ADDUCE FURTHER EVIDENCE
- 42. Annexures B and C to the mother’s affidavit filed on 12 December 2018 in support of her application to adduce further evidence contain a letter from her treating psychiatrist, Dr S, and a “Patient History Statement” listing at least nine sessions that the mother attended during 2016 and 2017.
- I consider that this evidence in particular would, if accepted, “facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge.” Other discretionary considerations, for example, whether the evidence was reasonably available at the date of the hearing, have an obvious particular application in the circumstances of this case.
- I am aware that the father asserts that consideration as having particular importance and he is, with respect, correct to highlight it. However, its acceptance as a significant factor depends upon a resolution of the factual claim to which I have earlier referred. I am in any event prepared to conclude that, if the evidence was not “tendered” as the mother contends, that omission can be referenced to her unfamiliarity as a lay litigant with court procedures and the unusual process her Honour was prepared to adopt. In the circumstances of this case I place no weight upon that particular discretionary factor.
- The evidence sought not to be adduced, if accepted, presents a prima facie case that circumstances may have changed in respect of issues concerning the mother’s mental health, which such issues were plainly central to the orders made by Judge Lapthorn. In that respect, X was seven when those orders were made; she is now 12.
- I am persuaded that the evidence led appropriately before the primary judge may have impacted upon the findings made by her Honour and the order dismissing the mother’s application and may have led to different orders.
- Justice demands that the mother have the opportunity to have her application heard by reference to the evidence under consideration. Significantly, justice also demands that the father should have the opportunity to respond to a case agitated by the mother by reference to that evidence.
- 48. It follows from what I have said that the application to adduce further evidence should be allowed. As a consequence of that decision, justice demands that the appeal should be allowed and the application be remitted for rehearing.
- I see no reason why Judge Spelleken should not rehear the matter, but I will leave that to the procedures of the Federal Circuit Court of Australia.
- Both parties represent themselves. There is no evidence before the Court of legal fees incurred by either. An order will formally be made that each party bear their own costs.
- 52. The mother did not appeal the orders made by Judge Lapthorn. Despite this, she continues to challenge them in a number of different ways. Continuing to do so will not assist her. The essence of the mother’s application is, it seems, to change fundamentally the existing orders.
- Yet, if she is able to produce evidence which is accepted by the Court that she has satisfied Order 11 of Judge Lapthorn’s orders, she becomes entitled pursuant to those orders to exercise the time with X for which they provide. But she is only entitled to that time if she can meet the requirements of Order 11.
- Success on this appeal does not mean that the substantive parenting orders sought by the mother should be made or should have been made by her Honour. A rehearing of her application will have as its focus X’s best interests. A number of factors, unconnected with whether Judge Lapthorn did or did not reach the correct conclusion (as the mother sees it), will be relevant to that determination, not the least of which will be the views of a 12 year old.
The Application in an appeal to adduce further evidence was allowed. The appeal was allowed. The orders made by Judge Spelleken on 29 June 2018 were set aside. The proceedings were remitted to the Federal Circuit Court of Australia for rehearing. Each party were to bear their own costs of and incidental to the appeal.
This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to a family Law Appeal.
If you are seeking advice in relation to a family law court appeal, or family law matters such as divorce or property settlements, contact Claire Naidu & Co, Lawyers and Mediators for family law advice. Click here for our contact details.
Note: This blog does not constitute legal advice and Claire Naidu & Co is not responsible for any reliance upon its contents.