Balfour & Ferber (No 2)

[2024] FedCFamC1A 194

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Balfour & Ferber (No 2) [2024] FedCFamC1A 194

Appeal from:

Balfour & Ferber (No 2) [2024] FedCFamC2F 1162

Appeal number:

NAA 225 of 2024

File number:

MLC 6089 of 2021

Judgment of:

AUSTIN J

Date of judgment:

22 October 2024

Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to issue a subpoena for the production of documents and to adduce the documents subsequently produced as further evidence in the appeal – Where there is no utility in permitting the appellant to issue a subpoena when the documents are not seemingly related to any of the grounds of appeal – Application dismissed.  

Legislation:

Family Law Act 1975 (Cth) Pt VII, Divs 6, 13A, ss 60CA, 65AA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.34

Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Sobey v Nicol and Davies (2007) 245 ALR 389; [2007] FCAFC 136

Number of paragraphs:

24

Date of hearing:

22 October 2024

Place:

Newcastle (via Microsoft Teams)

The Appellant:

Litigant in person

The Respondent:

Litigant in person

ORDERS

NAA 225 of 2024
MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BALFOUR

Appellant

AND:

MS FERBER

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	22 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 26 September 2024 is dismissed.

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 Balfour & Feber has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons deal with an application filed by the appellant in an appeal brought from orders made on 26 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his contravention application against the respondent.

2. The appellant now seeks permission to do two things: first, issue a subpoena requiring the production of documents; and secondly, to adduce as further evidence in the appeal the documents then subsequently produced in answer to the subpoena.

   Background

3. Final parenting orders were made between the parties in respect of their child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in October 2022.

4. In May 2024, the appellant filed a contravention application against the respondent alleging her breach of the orders on 68 occasions.

5. The application came on for hearing before the primary judge in August 2024. The appellant was self-represented at the hearing and elected to proceed with the prosecution of only five counts (Counts 35–39 inclusive). Those counts all related to Order 5(a), which provided for the child to communicate with the appellant by telephone each Monday and Thursday at 5.00 pm, alleging its breach by the respondent on five occasions between late January 2024 and late February 2024. Specifically, it was alleged the respondent failed to facilitate telephone calls between the child and the appellant without reasonable excuse.

6. As part of the evidence adduced in support of the alleged contraventions, the appellant relied upon telephone records produced by the Victorian Department of Justice and Community Safety (“the Department”). The appellant is in custody serving a term of imprisonment and, on each of the occasions relevant to the five counts, he unsuccessfully attempted to telephone the child from prison. The prison telephone call records were given to the appellant in response to his freedom of information application, but they were in redacted form. He tendered them into evidence in that form.

7. The primary judge did not accept the available evidence proved the respondent’s contravention of Order 5(a) in relation to each of the five counts, saying this in the reasons for judgment:

   13.The [appellant] submitted that the only STD phone number he calls is the [respondent’s] number…

   …

   18.The [appellant] relies on data with respect to telephone call logs which shows several attempted calls between 5:00pm and 5:30pm. According to the phone call logs, those outgoing calls were not answered. The [appellant] cannot establish, based on the evidence before me, that the calls were made to the [respondent’s] phone number. Given this, the respondent has no case to answer. For these reasons, the application must be dismissed.

8. The contravention application was therefore dismissed.

9. The appellant appealed from the dismissal order on 3 September 2024.

10. On 26 September 2024, the appellant filed his application seeking the relief mentioned above, supported by:

    (a)two affidavits he filed on 26 September 2024 and 17 October 2024; and

    (b)an email sent to him on 18 October 2024 by the Office of the Victorian Information Commissioner confirming an “initial view” that the new freedom of information request made by the appellant for the unredacted documents in June 2024 would be refused (Exhibit A).

11. The appellant first wants to issue a subpoena to the Department to procure the same telephone records as were previously supplied to him in answer to his freedom of information application, but this time in unredacted form, so they can then be tendered as further evidence in this appeal in that different form.

12. The application was listed before me in accordance with r 13.34(1)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) because the appeal is listed for hearing before me on 4 December 2024.

    Disposition

13. There would be no reason to deny the appellant permission to issue the subpoena if the documents it procures would then be properly admissible in the appeal. For that reason, it is logical to start by addressing the utility of the documents to the appeal.

14. The appellant believes the unredacted documents will be decisive, as he deposed this in his first affidavit:

    8.The [appellant] claims that a Corrections Victoria phone data request through subpoena without any redactions will successful prove the contravention application against the respondent.

15. However, the appellant’s faith in the utility of the documents is misplaced.

16. He filed his contravention application on 3 May 2024, more than three months before it was heard on 16 August 2024. He had plenty of time to be prepared for the hearing. The appellant deposed he received the redacted documents for which he applied on approximately 25 July 2024, months after he first applied for them, and did not then have sufficient time within the few weeks left before the hearing to either challenge the propriety of the redactions or to make another freedom of information request. If the appellant lacked confidence he had the evidence necessary to prove the alleged contraventions then the obvious solution was to delay filing the application until the evidence was to hand. But he chose not to do that because he said in this hearing he had assumed the state of the evidence, as it was, would be sufficient to prove the contraventions on the balance of probabilities. Nonetheless, that was his forensic choice.

17. Given the desirability of the finality of litigation, further evidence will not usually be permitted in an appeal pursuant to s 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) if it either was available or could reasonably have been obtained at the time of trial and its reception would tend to obliterate the distinction between original and appellate jurisdiction (CDJ v VAJ (1998) 197 CLR 172 at [55], [111], [114], [116], [118], [148], [169] and [186.9]). The further evidence here falls into that category. The appellant implicitly admits he could have procured the unredacted telephone records in advance of the hearing and so their reception in the appeal would obliterate the distinction between original and appellate jurisdiction.

18. Another powerful consideration militates against the reception of the further evidence in the appeal. The exercise of discretion to receive further evidence is critically influenced by the subject matter of the proceeding with which the appeal is concerned (Sobey v Nicol and Davies (2007) 245 ALR 389 at [69]–[71]; CDJ v VAJ at [53], [56], [108] and [186]). Here, the judgment from which the appeal lies is the dismissal of a contravention application for which the appellant, as the putative prosecutor in a quasi-criminal proceeding, bore the strict burden of proof. It was incumbent upon him to ensure he was ready to prosecute the contravention application with sufficient evidence. This was not an orthodox discretionary judgment under Pt VII, Div 6 of the Act, in respect of which neither party bore a burden of proof.

19. Lastly, the unredacted telephone records are not seemingly related to any of the four grounds of appeal upon which the appellant relies and would not therefore help demonstrate appealable error by the primary judge, which is the primary purpose of further evidence. This appeal is by way of re-hearing, imposing upon the appellant the burden of demonstrating some appealable error by the primary judge. It is not a hearing de novo, giving him the chance to re-run his case in the hope he can do better the second time around (Hsiao v Fazarri (2020) 270 CLR 588 at [44] and [53]).

20. Ground 1 alleges the primary judge gave “insufficient consideration” to the evidence which was adduced in support of the contravention application. The proposed further evidence could not help advance that ground.

21. Ground 2 does not allege any error at all, but simply observes the primary judge could have adjourned the hearing if not satisfied the available evidence was sufficient to prove the alleged contraventions. No adjournment of the hearing was sought by either party.

22. Ground 3 alleges the primary judge did not consider the best interests of the child, but her Honour was only considering a contravention application brought under Pt VII, Div 13A, not another parenting application brought under Pt VII, Div 6 of the Act, so s 60CA and s 65AA of the Act did not apply.

23. Ground 4 alleges the primary judge misinterpreted the parenting orders made in October 2022 in so far as they permitted written communication between the appellant and the child, but the five counts of contravention related only to the respondent’s alleged breach of Order 5(a) concerning telephone communication.

24. Since the unredacted telephone records which the appellant would like to procure could not be properly adduced as further evidence in the appeal, there is no utility in permitting him to issue a subpoena to the Department compelling their production to the Court. The application is dismissed.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       23 October 2024