Balfour & Ferber (No 3)
[2024] FedCFamC1A 227
•4 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Balfour & Ferber (No 3) [2024] FedCFamC1A 227
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: 4 December 2024 Catchwords: FAMILY LAW – APPEAL – Contravention – Parenting – Where the appellant brings an appeal from the dismissal of his contravention application – Where the appellant complains the primary judge denied him procedural fairness by not adjourning the hearing to allow him to address the evidentiary deficiency in his case – Where the appellant did not apply for an adjournment – Where the primary judge had to judge the dispute impartially on the evidence which the parties elected to adduce – Where the appellant fails to explain how the decision was wrongly made – Where the appellant asserts the primary judge did not consider the best interests of the child – Where the best interests of the child were not relevant to the determination of the contravention application – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, Divs 13A, 6, ss 60CA, 65AA, 70NAB Cases cited: Balfour & Ferber(No 2) [2024] FedCFamC1A 194
Balfour & Ferber [2024] FedCFamC1A 179
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 4 December 2024 Place: Newcastle (via MS Teams) The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 225 of 2024
MLC 6089 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BALFOUR
Appellant
AND: MS FERBER
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
4 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal 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 & Ferber (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal from orders made on 26 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2), dismissing the appellant’s contravention application against the respondent, is dismissed for the following reasons.
Background
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.
Relevantly for present purposes, Order 5(a) provided for the child to communicate with the appellant by telephone each Monday and Thursday at 5.00 pm.
In May 2024, the appellant filed a contravention application against the respondent alleging her breach of the orders on 68 occasions. 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, which counts all related to Order 5(a), alleging its breach by the respondent on five occasions between late January 2024 and late February 2024 (at [9]–[10]). Specifically, it was alleged the respondent failed to facilitate telephone calls between the child and the appellant without reasonable excuse.
As part of the evidence adduced in support of the allegations, the appellant relied upon telephone records produced by the Victorian Department of Justice and Community Safety. The appellant is in custody serving a sentence of imprisonment and on each of the relevant five occasions he unsuccessfully attempted to telephone the child from prison. The prison telephone call records were produced to the appellant in response to his freedom of information application, but they were in redacted form. He tendered them in evidence in that form.
The primary judge did not accept the 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.
The contravention application was therefore dismissed.
The appellant appealed from that dismissal order on 3 September 2024.
The appeal
The grounds of appeal are as set out in the Notice of Appeal filed on 3 September 2024.
Two interlocutory applications have already been decided. The appellant was relieved of the obligation to file the transcript of the hearing before the primary judge (Balfour & Ferber [2024] FedCFamC1A 179) but was denied leave to issue a subpoena and to adduce further evidence in the appeal (Balfour & Ferber(No 2) [2024] FedCFamC1A 194).
Ground 2
This ground complains of the appellant’s deprivation of procedural fairness.
The appellant contends it was open to the primary judge to use “her discretionary powers to stand down or adjourn the [hearing] giving the [appellant] procedural fairness”.
As articulated, the complaint is that, because the primary judge found the redacted telephone records were insufficiently probative evidence of the alleged contraventions, her Honour could have forewarned the appellant of the evidentiary deficiency and then adjourned the hearing to give him the reprieve necessary to obtain the unredacted records and resume the prosecution of the contravention application at some later point in time. So stated, the complaint is baseless.
Her Honour had to judge the dispute impartially on the evidence which the parties elected to adduce (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [19]–[20]). The primary judge reserved judgment when the hearing was complete so the insufficiency of the appellant’s evidence may not have been readily apparent to her Honour until deliberating during the time in which the judgment was reserved. Even if the insufficiency of the evidence was apparent to the primary judge during the hearing, no obligation fell upon her Honour to give the appellant gratuitous advice or a running commentary about the quality of the evidence he needed to sustain his application. Nor would it have been proper for her Honour to adjourn the hearing of her own volition, as that would have necessitated her Honour explaining the reason for the adjournment. The appellant did not apply for an adjournment to get more evidence. He believed the evidence he adduced was enough to prove the respondent’s contraventions, as he submitted this:
13.The [appellant] made the forensic choice to proceed with the contravention hearing as he had not communicated with the child since January 2024. The [appellant] chose to no longer attempt to obtain the data needed through FOI or subpoena due to the continuous delays faced. The [appellant] incorrectly assumed that the evidence in hand would be enough to prove the alleged contraventions being made.
The appellant also admitted his belief in the sufficiency of the evidence during one of the earlier interlocutory hearings in this appeal (Balfour & Ferber(No 2) at [16]).
There was no denial of procedural fairness in letting the hearing run its course and determining the dispute on the evidence voluntarily adduced. The appellant bore the burden of proving the alleged contraventions. His failure to do so does not reveal any error by the primary judge in the manner the hearing was conducted.
Ground 1
This ground alleges the primary judge gave “insufficient consideration” to the whole of the evidence adduced by the appellant in support of the contravention application.
To begin with, this complaint is redolent of discretionary error, but the determination of the contravention application was not a discretionary decision. It was an evaluative decision which was either right or wrong. The proceeding was civil in nature but nonetheless a quasi-criminal prosecution of the respondent for multiple contraventions of an order, which the appellant bore the burden of proving.
No submission made by the appellant attempted to explain how the decision was wrongly made on the evidence adduced in support of the five counts of contravention. Instead, the appellant’s Summary of Argument exposed his generic belief that all 68 counts should have been proven. He submitted this:
7.…The vast amount of evidence outlining the continuous contravention breaches of the respondent produced by the [appellant], the non-communication with the child since Jan 2024 and the behaviour of the respondent towards the [appellant] since his incarceration in 2021 should have satisfied the Judge that the allegations being made by the [appellant] were more probable than not.
8.Although the phone record contained redacted data the records clearly show the [appellant] attempted to make multiple calls every Thursday between 5:00pm-5:30pm to an STD number as per the original orders of [a named judge]. The [appellant] strongly disagrees that one the balance of probabilities the evidence produced does not prove the contravention allegation being made by the [appellant]. If the court allowed for the original full 60+ alleged contraventions each phone record would have clearly shown multiple attempted calls every Thursdays between 5-5:30pm by the [appellant] to the STD number allegedly belonging to the respondent. Ensuring the [appellant] complied with the final parenting orders no calls are made after 5:30pm to the alleged STD number of the respondent. The phone records show that all calls after 5:30pm are to non-STD numbers as all contact numbers on the prison phone system other than the respondents are charged and listed as local calls.
The appellant’s strong disagreement with the decision does not mean it was wrongly made.
The ground and the submissions made in support of it also comprise a complaint of the primary judge rejecting some additional evidence proffered by the appellant, which in this hearing the appellant identified to be supplementary oral evidence he wanted to give. The supposedly improper rejection of such evidence by the primary judge cannot be taken any further as a complaint in this appeal because, on the appellant’s application, he was relieved of the obligation to file the trial transcript and so the circumstances under which the evidence was proffered and rejected cannot be verified. The extra evidence may have been quite properly rejected by the primary judge as being inadmissible for any number of procedural or substantive reasons. It is impossible to now say the rejection of such evidence was erroneous because the subject evidence was not adduced as further evidence in the appeal.
Ground 3
This ground simply asserts:
The [appellant] alleges at no time did the Judge consider the best interests of the child. The [appellant] claims that on the balance of probabilities the alleged contravention was proven. The evidence supports the fact that the [appellant] had not spoken with his son since January 2024 however this was not addressed at any time during the hearing. The Judge has not considered the long-term damage the alleged contravention by the respondent is causing the child.
The best interests of the child were not relevant to the determination of the contravention application brought under Pt VII, Div 13A of the Act. The proceeding was not a parenting application brought under Pt VII, Div 6 of the Act, as no new parenting order was being sought, in which event the paramountcy principle within the Act (ss 60CA and 65AA) did not apply. The principal objects of contravention proceedings brought under Pt VII, Div 13A of the Act are to ensure compliance with existing parenting orders and to vindicate the Court’s authority, not to enquire into the adequacy and variation of existing orders (s 70NAB).
Ground 4
This ground alleges:
The [appellant] claims that the Judge misinterpreted the final parenting orders allowing the father to write one (1) letter per week to the child. The [appellant] believes at the time of making the final parenting orders the Judge intended to provide the father with the ability to write to his child. The Judge was wrong in her interpretation of the order and in determining that the mother was not obliged to provide the child with the letter sent by the father.
As can be seen, the ground comprises a complaint that 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, which form of interaction between them was regulated by Order 5(b), but the five counts of contravention which were prosecuted related exclusively to the respondent’s alleged breach of Order 5(a) concerning their telephone communication. As the ground has nothing to do with the appealed judgment it can be disregarded.
Disposition
The appeal must be dismissed.
No question of costs arises as the respondent was also self-represented, did not file a Summary of Argument as ordered, and made no pertinent oral submission.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 5 December 2024
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