Beale & Harvie (No 2)
[2024] FedCFamC1A 41
•28 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Beale & Harvie (No 2) [2024] FedCFamC1A 41
Appeal from: Harvie & Beale (No 2) [2023] FedCFamC1F 950 Appeal number: NAA 334 of 2023 File number: MLC 9904 of 2015 Judgment of: AUSTIN, WILLIAMS & JARRETT JJ Date of judgment: 28 March 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed five separate applications brought by the mother – Where leave to appeal is not required from orders that finally determine substantive rights – Where the day before the appeal hearing the mother made an application for an adjournment – Where the reasons advanced by the mother for an adjournment are rejected – Where the mother sought disqualification of a member of the bench on the ground of apprehended bias – Where the grounds for apprehended bias have not been established and the disqualification application is refused – Where the mother does not set out or address each ground of appeal in her Summary of Argument as required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the father sought the summary dismissal of the appeal on account of the mother’s failure to comply with the Rules – Where the appeal is instead dismissed on its merit – Where the mother’s complaint she was constrained by a deadline to prosecute her applications before the primary judge is rejected – Where the mother deliberately refrained from attending the hearing before the primary judge and cannot claim her denial of procedural fairness by reason of the hearing proceeding in her absence – Where the mother did not advance an argument to explain why the judgment is manifestly unjust or reasonable – Where the mother omits to explain the alleged failure by the primary judge to correctly apply legal principles – Appeal dismissed – Where the appeal was wholly unsuccessful – Mother to pay the father’s costs of the appeal in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, XIB, XIIIB, XV, s 117 and s 121
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.04, 10.09, 10.26, 10.27, 13.23, 13.45
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Beale & Harvie [2023] FedCFamC1A 181
Carr v Finance Corp of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fierro & Fierro (No 7) (2023) FLC 94-132; [2023] FedCFamC1A 24
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Number of paragraphs: 87 Date of hearing: 21 March 2024 Place: Melbourne The Appellant: Litigant in person (did not participate) Counsel for the Respondent: Mr Higgins Solicitor for the Respondent: Higgins Legal Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
NAA 334 of 2023
MLC 9904 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BEALE
Appellant
AND: MR HARVIE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, WILLIAMS & JARRETT JJ
DATE OF ORDER:
21 MARCH 2024
THE COURT ORDERED ON 21 MARCH 2024:
1.The appellant’s application for an adjournment of the appeal hearing is dismissed.
2.The appellant’s application to disqualify Austin J from hearing the appeal as a member of the Full Court is dismissed.
3.The appeal is dismissed.
4.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $1,500.
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 Beale & Harvie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & JARRETT JJ:
This appeal by the mother lies from a series of orders made on 9 November 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 1) dismissing five separate applications brought by her within parenting proceedings between the parties, which are still yet to be heard and determined.
For the reasons which follow, the appeal is dismissed with modest costs.
BACKGROUND
The parties separated in 2015.
They have one child, born in 2014, who is now nearly 10 years of age.
In October 2015, the father commenced proceedings for parenting orders under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). Several months later, in January 2016, he expanded the litigation by seeking property settlement relief under Pt VIII of the Act. That former litigation was concluded by final parenting orders, made in August 2016, and final property settlement orders, made in September 2016. In both instances, the orders were consensual.
The parenting orders provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for him to spend substantial amounts of time with the father. Despite the orders being made consensually, they did not quell the dispute.
Fresh parenting proceedings were commenced by the father in October 2021 and the litigation has since been acrimonious and tortuous. Multiple interlocutory disputes have been entertained, allegations of the breach of interim and procedural orders abound, and original decisions have been unsuccessfully reviewed and appealed.
Five applications filed by the mother are relevant to this appeal.
On 28 March 2023, the mother filed an application seeking a grant of permission under s 121 of the Act to furnish certain documents (including applications, affidavits, submissions, transcript, court orders, and published reasons for judgment) to certain named people and entities (including the Commonwealth Attorney-General, government instrumentalities, non-government organisations and journalists) (“the first application”), with the stated intention of exposing institutional flaws in family law litigation.
On 24 April 2023, the mother filed a contempt application against the father (“the second application”). It is apposite to observe at this point that this application was plainly defective because it did not plead any counts of alleged contempt, though the mother’s accompanying affidavit appears to allege the father’s breach of interim parenting orders on two occasions in January 2023 and April 2023 by him sending her messages by text and email.
On 29 May 2023, the mother filed a contravention application against the father (“the third application”) alleging 18 counts of his failure to comply with interim parenting orders without reasonable excuse between November 2022 and January 2023.
On 13 June 2023, the mother filed an application (“the fourth application”) seeking that orders made by a registrar on 20 April 2023 be stayed, pending her appeal from an order later made by a judge on 2 June 2023 dismissing her application to review the registrar’s orders. It may be conveniently noted here that the mother did not ever file any appeal from the dismissal of her review application, so the fourth application was rendered superfluous.
On 19 June 2023, the mother filed an application (“the fifth application”) seeking orders declaring the father to be a vexatious litigant, staying or dismissing the pending parenting proceedings, and restraining the father from instituting any further proceedings under the Act.
None of those applications had been heard before the trial of the parenting proceedings was due to start on 16 October 2023. On that date, the primary judge vacated the trial because the mother failed to attend Court and had failed to file trial documents in compliance with anterior procedural orders. The trial was pushed back to start in January 2024 and all five of the mother’s applications were then listed for hearing two weeks later on 30 October 2023 so they could be determined in advance of the trial.
The mother again failed to appear at the hearing on 30 October 2023, even though she had been directed to attend in person (at [5]–[6]). The mother’s absence was deliberate, because she sent written submissions to the Court by email shortly before the hearing was due to commence in which she expressly said she would “abstain from participating” (at [6] and [11]).
The mother’s written submissions contained an application for an adjournment of the hearing, pending the determination of her application to the High Court of Australia (“the High Court”) for special leave to appeal from an appellate judgment of this Court dismissing her appeal from another unrelated interim application she unsuccessfully made (at [9]), though her application to the High Court was not even actually filed until 15 December 2023. In any event, the primary judge dismissed the application to adjourn the hearing and then entertained the five applications in the mother’s absence (at [8] and [10]–[13]).
The following five orders were made by the primary judge on 9 November 2023, sequentially dismissing each of the five applications:
1.The mother’s application filed 28 March 2023 to release the documents listed in her affidavit sworn 16 March 2023 be and is hereby dismissed.
2.The mother’s application for Contempt filed 24 April 2023 be and is hereby dismissed.
3.The mother’s application for a Contravention of Orders filed 29 May 2023 be and is hereby dismissed.
4.The mother’s application filed 13 June 2023 for a Stay of the Orders made 20 April 2023 be and is hereby dismissed.
5.The mother’s application filed 19 June 2023 to have the father declared a vexatious litigant pursuant to s 102QB of the Family Law Act 1975 (Cth) be and is hereby dismissed.
The appeal is brought by the mother from those orders.
The mother failed to attend the appeal hearing on 21 March 2024. The father opposed her written adjournment application and orders were then made disposing of the appeal, the reasons for which orders were reserved. These are those reasons.
ADJOURNMENT APPLICATION
At 4.29 pm on the afternoon before the appeal hearing, the mother sent an email to the appeal registrar seeking to file an Application in an Appeal and a supporting affidavit.
The appeal registrar sent a reply email to the mother at 5.25 pm informing her the documents were not accepted for filing and she would need to seek the Full Court’s leave to rely upon the documents at the appeal hearing, which remained listed the next day.
At 9.25 am on the morning of the appeal hearing, the mother sent another email repeating her request for an adjournment of the hearing.
The unfiled Application in an Appeal, the unfiled supporting affidavit, and the collection of emails were marked as exhibits in the appeal (Exhibits A, B and C respectively).
Putting to one side the mother’s general disaffection with the way the original litigation has been progressing, only two reasons were advanced by the mother to justify the adjournment of the appeal hearing: first, she has had insufficient time within which to prepare for the hearing; and secondly, the appeal should not be heard until her application to the High Court for an extension of time within which to apply for special leave to appeal from the former appellate judgment of this Court has been determined. We reject both reasons.
The appealed orders were made on 9 November 2023. The mother filed her appeal on 7 December 2023. The appeal hearing was fixed for 21 March 2024 and, in readiness for it, the mother filed her Summary of Argument on 4 March 2024. Well over four months elapsed between the appealed orders being made and the hearing of the appeal. We regard that as being more than sufficient time for the mother to be ready, particularly in light of the statutory imperative for litigation to be determined as quickly, inexpensively and efficiently as possible (s 67(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).
Another appeal brought by the mother from orders made in the underlying proceedings was summarily dismissed by Austin J on 23 October 2023 (Beale & Harvie [2023] FedCFamC1A 181). On 15 December 2023, beyond the time limitation period, the mother filed with the High Court an application for leave to bring an application for special leave to appeal from the intermediate judgment out of time. That application is apparently still pending before the High Court. We see no reason why that as-yet undetermined application to the High Court should preclude the disposition of the present appeal from a completely different set of orders.
The adjournment application was refused.
DISQUALIFICATION APPLICATION
The mother also sought Austin J’s disqualification from hearing the appeal as a member of the Full Court due to an alleged apprehension of bias. The sole premise of the application is that, by having summarily dismissed the mother’s former appeal from orders made by another judge in the underlying proceedings, “Austin J might not bring an impartial mind to the resolution of this appeal”. The bare proposition is rejected.
In Beale & Harvie, the mother’s appeal was summarily dismissed because the procedural orders from which she purported to appeal did not embody a “judgment” from which an appeal could validly lie. The appeal was therefore dismissed exclusively for legal reasons.
The mother deposed in her affidavit that “Justice Austin had formed a prejudicial view of me” but, even if that is her honest belief, it is not objectively probative of the fact. No question of fact nor of the mother’s veracity arose for consideration in Beale & Harvie. The mother did not appear at the hearing of that appeal either. The current disqualification application therefore hinges entirely upon the mother’s personal dissatisfaction with the result of the former appellate litigation, which cannot conceivably satisfy the objective test for judicial disqualification on account of apprehended bias (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at [37]–[50] and [67]–[73]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345).
The disqualification application was refused.
LEAVE TO APPEAL
The mother applied for leave to appeal, but we regard it as being unnecessary.
Relevantly, leave to appeal is only necessary in respect of “prescribed judgments” (s 28(3)(e)(i) of the FCFCA Act), but none of the dismissal orders is a prescribed judgment because they are not “interlocutory decrees” (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)).
All five dismissal orders finally determined the mother’s substantive rights (Carr v Finance Corp of Australia Ltd (No.1) (1981) 147 CLR 246 at 248 and 256–257; Licul v Corney (1976) 180 CLR 213 at 225 and 230–231; Hall v Nominal Defendant (1966) 117 CLR 423 at 439–440 and 444), thereby precluding their characterisation as interlocutory orders.
Orders 1, 2, 3 and 5 finally determined the mother’s rights in respect of her first, second, third and fifth applications brought under Pt XV, Pt XIIIB, Pt VII (Div 13A), and Pt XIB of the Act respectively. Order 4 determined the mother’s fourth application to stay orders pending an appeal, but it is not the subject of the appeal.
THE APPEAL
The appeal comprises 10 grounds and supposedly relates to all five orders, but that is not truly so. The mother does not seek to disturb Order 4 and none of the grounds or submissions were specifically directed to that order.
Accordingly, the grounds are only addressed in so far as they attack Orders 1, 2, 3 and 5.
Grounds 1, 2, 3, 4, 5, and 6 all challenge those four orders generically.
Grounds 7, 8, 9 and 10 respectively challenge Orders 1, 2, 3 and 5 individually.
Rule 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) requires an appellant to file a Summary of Argument which sets out each ground of appeal and, in respect of each ground, an articulation of the arguments on points of law or fact in support of the ground. The mother did not comply. Her Summary of Argument neither sets out nor addresses each ground of appeal. Save for two isolated sentences, which appear to be directed to Grounds 3 and 4, the contents of the Summary of Argument only broach the two complaints of denial of procedural fairness covered by Grounds 1 and 2. Nonetheless, we will address each ground.
The father sought the summary dismissal of the appeal pursuant to r 13.45 of the Rules, on account of the mother’s Summary of Argument not being procedurally compliant and it being filed a couple of days late, but the appeal is instead dismissed on its merit.
Grounds 1 and 2
These grounds both assert the denial of procedural fairness.
Such denial of procedural fairness is allegedly due to: first, the mother being “constrained by a two-week deadline” to be ready to prosecute her applications (Ground 1); and secondly, the dismissal of the applications in her absence (Ground 2).
In that regard, the primary judge said this in the reasons for judgment:
5.The mother has before the Court five discrete interlocutory applications. At a mention on 16 October 2023, at which the mother did not attend, I determined to list and hear the five applications so as to maintain the trial date of 18 January 2024. In so doing, I rejected applications on that day by counsel for the father for dismissal of the extant interlocutory applications by reason of the mother’s non-appearance. In so doing, I determined that a further 14 days was sufficient notice to the mother of the Court’s intention to hear her applications on 30 October 2013 with one day allocated. Specifically, where mother’s applications included: first, that the father be dealt with for contempt; and another that he be dealt with for contravening court orders, I directed that the parties attend in person on 30 October 2023 in anticipation of cross-examination being required should the mother prosecute the contempt and contravention applications.
6.The mother did not attend court on 30 October 2023. She gives no reason or excuse for her non-attendance and hence non-compliance with the Court’s direction. The mother did, however, provide some 11 pages of “submissions” received by the Court, and presumably counsel for the father and the ICL, at 9:07am on the morning of the hearing. Those submissions do not address, or adequately address, her non-attendance at the Court.
…
9.I have read and considered the mothers submissions. At [37] the mother submits:
… I humbly seek an Adjournment of this interlocutory matter until the Appeal for Special Leave for the discharge of the Independent Children’s Lawyer is heard and determined for timetabling of the extant applications to allow for updated material to be filed and for submissions to be made so that I can prosecute these applications fairly and put my evidence before the Court.
10.In so far as this amounts to an application for an adjournment, I determined to hear the application on 30 October 2023. Again, the mother had been put on notice as to the hearing of the applications by my orders of 16 October 2023. The mother is the applicant and her applications date from March, April, May, and June 2023. As such, I am of the view that ample time has been given to her for preparation and where she has indeed filed affidavit material in respect of each of the applications.
11.The father is the respondent to each of the applications and has a justified expectation that the matters will be heard and disposed of expeditiously. The trial is listed for 18 January 2024 and it is abundantly clear that the Court wishes to dispose of these now long-standing interlocutory applications so that there be no unnecessary delay in the hearing and determination of the trial which, after all, is to attend to the best interests of a child. …
…
13.I repeat that I am of the view that the mother has been afforded procedural fairness. She is the applicant. She has filed affidavits in support of her applications. The applications were filed between March and June of this year. The matter was effectively adjourned for two weeks as an indulgence to the mother given her non-appearance on the last court event and against the submissions of counsel.
(Emphasis added)
The “two-week deadline” of which the mother complains was the period between 16 and 30 October 2023. She said this in the written submissions she emailed to the Court on the morning of the hearing (at [11]):
On 16 October 2023 the court set a hearing date for all existing applications, which was a mere two weeks away. Such a limited timeframe was not only harsh and unreasonable but also impeded my rights as an applicant to procedural fairness…
In order to prosecute these applications, I respectfully reiterate that I require sufficient time to gather, assemble and file further evidence and prepare relevant submissions…
The mother made submissions of similar ilk within her Summary of Argument in the appeal.
However, the mother had much longer than two weeks within which to prepare to prosecute the applications. She had many months. All five applications were filed between March and June 2023 and all were supported by contemporaneously filed affidavits, as required by r 5.04 of the Rules. We agree the mother had “ample time” within which to be ready (at [10]). No appealable error in the primary judge’s approach or reasons is apparent to us.
In any event, the mother’s prospects of successfully prosecuting the first, second, third and fifth applications could not possibly have been enhanced by being granted more time within which to enlarge the evidence, so an adjournment would have achieved nothing but useless delay.
In respect of the first application, there were no developments in the litigation between March and October 2023 which could have conceivably improved the mother’s case for permission to publicly disseminate any documents generated in the litigation. In that time, only procedural orders were made to manage the progress of the proceedings to trial in October 2023.
The second and third applications, alleging against the father certain historical acts of contempt and contraventions of orders without reasonable excuse, could only be prosecuted by reliance upon the evidence she filed in support of those applications. Absent any evidence of an admission against interest subsequently being made by the father, which is not suggested occurred, no evidence given by the mother of things said or done by him after the applications were respectively filed in April and May 2023 could possibly bear upon his guilt for the alleged acts of contempt and contravention committed between November 2022 and April 2023.
Nor could the fifth application have been enhanced by additional evidence led by the mother. The fifth application was filed in June 2023 and, thereafter, the father was not responsible for any proliferation of the litigation.
Moreover, Ground 1 is really a complaint about the decision made on 16 October 2023 to list the five applications for hearing on 30 October 2023, which can be answered in other comprehensive ways. First, this is an appeal from orders made on 30 October 2023, not those made on 16 October 2023. Secondly, the order fixing the hearing on a date two weeks later is not an appealable order (s 26(2)(b)(ii) of the FCFCA Act). Thirdly, it is axiomatic that no procedural unfairness can result from a correctly made procedural decision about the timing of a hearing, as the alleged disadvantage to either party flowing from the decision is factored into the decision before the order is made, as it was in this case (at [9]–[13]). The concept of procedural fairness concerns itself with the fairness of the hearing which led to the challenged order – not with the effects of the order.
Ground 1 fails.
On 16 October 2023, the primary judge made this order:
6.The parties are each directed to attend in person at the hearing of all interim and interlocutory applications of the mother listed for hearing at 10.00am on 30 October 2023 at Melbourne noting that non-appearance by the applicant mother will give rise to consideration of such applications to be dismissed and non-appearance by the father will result in consideration of the applications proceeding undefended.
Notwithstanding such forewarning, the mother did not appear at the hearing on 30 October 2023. Her decision to absent herself from the hearing was certainly deliberate. In the written submissions she emailed on the morning of the hearing she said (at [11]):
I reiterate that I will abstain from participating in the hearing if it proceeds on 30th October.
Since the mother deliberately refrained from attending the hearing, she cannot claim her denial of procedural fairness by reason of the hearing then having proceeded in her absence. As the High Court has observed, the Court is not required to indefinitely delay the progress of proceedings merely because a party declines to appear (see Allesch v Maunz (2000) 203 CLR 172 at 182–186 and 189–191; Taylor v Taylor (1979) 143 CLR 1 at 4).
Ground 2 fails.
Although not pleaded as a discrete ground of appeal, the Notice of Appeal also includes this generalised complaint about the denial of procedural fairness:
11.The [mother] repeatedly requested accommodations for her participation in proceedings, considering the prevailing family violence and the protection order. These included requests for remote participation and/or safe in-person arrangements and were communicated through formal submissions, applications, direct court communications, as well as [sic] correspondences with chambers, with all parties being duly informed. Despite these repeated, formal requests, the [mother] was consistently denied these opportunities, leading to a significant denial of procedural fairness and an inability to put her case.
As can be seen, the complaint is predicated upon alleged facts which remain unproven: first, repeated requests by the mother for her “remote participation” at hearings or arrangements for her to attend court “safely”, and secondly, repeated denials of such requests.
No application was made by the mother to tender as further evidence in the appeal any document or correspondence she believed would prove such facts in relation to the hearing conducted on 30 October 2023. In the absence of proof, we do not accept the mother’s cavalier allegation she was rebuffed in that way. The Court’s reputation for sensitivity to allegations of family violence and ready willingness to implement safety plans for the security of litigants upon the Court’s premises is a matter of public notoriety. Such arrangements were made for the mother’s safe attendance at Court for this appeal hearing, though she did not avail of them.
Ground 3
This ground complains of the primary judge failing to “consider or appropriately weigh” the mother’s evidence, which involves two separate and irreconcilable complaints: first, the failure to even consider her evidence at all; and secondly, considering it but not giving it enough weight. The mother did not seem to appreciate the contradiction.
The only submission made by the mother, apparently in support of this ground, was in these terms:
… His Honour did not, and could not have, considered properly the evidence tendered by the mother or alternatively His Honour failed to give such evidence proper weight.
(Emphasis in original)
(Mother’s Summary of Argument filed 4 March 2024, p.4)
The reasons given for dismissal of the first application expressly refer to the mother’s evidence (at [15]–[18]), so her evidence was considered and the first limb of the ground is demonstrably false. The second limb to the complaint, about insufficient weight being accorded to her evidence, is not a competent ground of appeal unless the argument is advanced to explain why the discretionary judgment is manifestly unjust or unreasonable (Hedlund & Hedlund (2021) FLC 94-065 at [12] and [36]–[37]). No such complaint was made here, nor could it have been, because the first application was dismissed on account of the application not properly falling within the exception provisions of s 121(9) of the Act (at [24]–[27]), which was a factual and not a discretionary determination.
The second and third applications were dismissed due to the mother’s failure to appear and prosecute them. The evidence filed in support of those applications need not have been considered when their dismissal resulted from the conventional application of r 10.26 and r 10.27 of the Rules.
The reasons given for dismissal of the fifth application also expressly refer to the mother’s evidence (at [33] and [38]) so, again, her evidence was considered and the first limb of the ground is false. The fifth application was dismissed because the primary judge did not accept the legal premise for the relief sought by the mother was made out (at [40]–[43]). The second limb of the ground, which complains of insufficient weight being reposed in the mother’s evidence, is incompetent when it cannot be rationally contended the decision to dismiss the application was manifestly unreasonable or unjust.
Ground 4
This ground alleges the primary judge’s “misapplication, misinterpretation, or disregard for the correct legal principles” in respect of the first, second, third and fifth applications.
The only submission made by the mother, apparently in support of this ground, was in these terms:
In addition, given His Honour’s approach to the determination of the applications it is submitted that His Honour misconstrued and/or failed to apply or misapplied the correct legal test and principles that govern the determination of applications before the Court, particularly applications where one of the parties is self represented.
(As per the original)
(Mother’s Summary of Argument filed 4 March 2024, p.4)
The mother’s submissions conspicuously omit to explain the alleged failure to correctly apply legal principles in respect of the dismissal of the first, second, third and fifth applications. The bare assertion of legal error is rejected.
Ground 5
This ground alleges discretionary error by the primary judge by both taking irrelevant considerations into account and ignoring relevant considerations in respect of the first, second, third and fifth applications.
No submission was made by the mother to explain this ground in her Summary of Argument. It is rejected.
Ground 6
This ground is pleaded as follows:
6.On the evidence before the Court, His Honour erred in dismissing the applications before the Court that formed the subject matter of orders 1-3 & 5 inclusive.
(As per the original)
The ground does not assert the basis upon which the dismissal of the first, second, third and fifth applications was “erroneous” and so, in the absence of any asserted appealable error, it is not a competent ground of appeal.
Ground 7
This ground attacks Order 1, but it simply asserts the mother was “inappropriately denied” the relief she sought in the first application, in which case it is not a competent ground of appeal because the nature of the alleged appealable error is not identified.
Ground 8
This ground attacks Order 2. It alleges the second application was dismissed for want of prosecution. Although true, that is not necessarily an error.
Rule 10.26(1)(e) provides as follows:
(1)For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
…
(e) prosecute the proceeding with due diligence.
Rule 10.27(1)(a) the provides:
(1) If an applicant is in default, the court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant …
The primary judge relevantly said this in the reasons for judgment:
28.Matters of contempt are dealt with at s 112AP of the Act and Rule 11.71 of [the Rules]. Suffice to say that an allegation of contempt constitutes an assertion of contravention of an order involving a flagrant challenge to the authority of the Court. The Rules provide for the process to be taken by the Court in hearing an application that a person be dealt with for contempt.
29.Whilst I note that the father was not in attendance at court and despite my directions, the mother as the applicant also did not attend court. I was told and I accept that the father was available to enter a plea pursuant to Rule 11.71(6) if required. Nevertheless, where the mother was not in attendance to prosecute the application and given the serious nature of an allegation of contempt including the potential ramifications, I determined it not appropriate to take a plea from the father. I consider, therefore, the mother did not prosecute the application where that application was unambiguously listed for hearing on 30 October 2023. As such, I determined to dismiss the application pursuant to Rule 10.26(1)(e) of the Rules.
There was no error in dismissing the application pursuant to r 10.26(1)(e) and r 10.27(1)(a) of the Rules but, even if there was, the error would be immaterial because the second application is a defective contempt application and would necessarily be struck out upon demurrer as being an abuse of process pursuant to r 10.09(1)(c) of the Rules because it does not plead any specific counts of contempt (Fierro & Fierro (No.7) (2023) FLC 94-132 at [37]–[42]).
Ground 9
This ground attacks Order 3. It alleges the third application was dismissed for want of prosecution. Again, although true, that is not necessarily an error.
The primary judge said this:
30.Similarly to the mother’s contempt application dealt with above, I determined no plea should be taken from the father despite his non-attendance but where he was available and in circumstances where the mother did not attend the Court to prosecute her application. Given the potential punitive nature of a contravention application, like the contempt application, I take the view that the application should therefore be dismissed pursuant to Rule 10.26(1) of the Rules. In doing so I note that the application dates from May 2023. I note that the mother has filed an affidavit in support of the application. I take into account the general policy of the Court that contravention applications should be disposed of efficiently.
There was no error in dismissing the application pursuant to r 10.26(1)(e) and r 10.27(1)(a) of the Rules.
Ground 10
This ground attacks Order 5. It alleges the order was made “erroneously”, without identifying the nature of the error, in which case the ground is incompetent.
The mother seemed not to appreciate the paradox of her applying to have the father declared a vexatious litigant when most of the litigious activity has been instigated by her. The primary judge observed this:
34.I did not read the mother’s written submissions provided on the morning of the listing of this application to directly reference this application otherwise than in its generalities.
…
38.I note again that the mother did not attend to prosecute the application. I have, however, considered her affidavit material and her written submissions provided on the morning of the listing, but where again those submissions come only in the form of generalities.
…
40.The court record shows the father filing one interim application seeking a change of residence in the interim for the child. The mother is correct in that the application was dismissed by the Senior Judicial Registrar. …
41.Within context, the Court file on my calculations notes some 11 interlocutory or interim applications filed by the mother during the course of these proceedings and including an unsuccessful appeal.
42.Whilst the mother’s affidavit makes allegations and assertions as to the father’s bona fides and motivations behind his application including that it is filed and prosecuted primarily as a form of coercive violence towards the mother, such allegations and applications remain to be tested at the trial in January 2024. There is no litigious history in this Court by the father to corroborate the mother’s claims. The mother makes general reference to proceedings by the father in the Magistrates Court. I am not apprised of the particulars of those applications and whether or not they proceeded to hearing or were dealt with otherwise?
43.In all of the circumstances, I am unable to find that the father, in pursuing a parenting application in this Court, is vexatious in his attitude or intent where the mother’s assertions are not tested. The application will be dismissed.
(Emphasis added)
No error was identified in that analysis by the primary judge.
The ground also alleges the mother was “refused” permission to file updating evidence, but that is not necessarily an error even if true. She did not appear before the Court on 16 October 2023 to request permission to file further evidence in support of any of the applications, all of which were already supported by contemporaneously filed affidavits. She did seek permission to file additional evidence in the written submissions she sent by email to the Court on 30 October 2023 just before the hearing started, but her request for an adjournment was refused for the reasons properly given by the primary judge.
DISPOSITION
The appeal is dismissed.
The father sought an order against the mother for his party/party costs of the appeal in the very modest sum of $1,500. We acknowledge the normative requirement for parties to bear their own costs of litigation under the Act (s 117(1)), though costs orders may be made if warranted by reference to statutory criteria (s 117(2) and s 117(2A)). Although unaware of the mother’s financial circumstances, she deposed in her affidavit to her employment as an educator, from which she presumably derives income. Most importantly, the appeal was wholly unsuccessful and should not have been brought. The father should have his costs.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Jarrett. Associate:
Dated: 28 March 2024
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