Best & Best (No. 2)
[2013] FamCAFC 6
FAMILY COURT OF AUSTRALIA
| BEST & BEST (NO. 2) | [2013] FamCAFC 6 |
FAMILY LAW – APPEAL – CONTRAVENTION – Where the notice of appeal contained 15 grounds – Where the majority of the appellant father’s complaints and submissions were based on the father’s own misconceptions – Where the father failed to refer to evidence which supported his assertions of error – Where no error in the trial judge’s application of legal principles or her Honour’s exercise of the discretion was established – appeal dismissed.
FAMILY LAW – APPEAL – APPLICATIONS TO ADDUCE FURTHER EVIDENCE – Where the application filed subsequent to the appeal hearing was clearly in response to, and an attempt to cure, matters which emerged during the course of the appeal hearing as obstacles to the father’s successful prosecution of his appeal against substantive parenting orders in EA 23/2012 – Where the father’s further evidence would not demonstrate that the trial judge’s decision was erroneous – Where part of the evidence in fact confirmed the correctness of a finding about which complaint was made in the appeal – Applications dismissed.
FAMILY LAW – APPEAL – COSTS – Where the appeal was heard together with an appeal against substantive parenting orders which formed the subject of the contravention proceedings – Where the reasons for judgment in both appeals were delivered together – Where the appropriate order is to reserve costs and grant the respondent mother and Independent Children’s Lawyer leave to file any application for costs together with submissions within 14 days.
| Family Law Act 1975 (Cth) ss 65N(2), 70NAA, 70NBA, 93A |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Best |
| RESPONDENT: | Ms Best |
| INDEPENDENT CHILDREN’S LAWYER: | Michael Davies |
| FILE NUMBER: | WOC 91 of 2010 |
| APPEAL NUMBER: | EA 133 of 2012 |
| DATE DELIVERED: | 1 February 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May and Ainslie-Wallace JJ |
| HEARING DATE: | 19 November 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 September 2012 |
| LOWER COURT MNC: | [2012] FamCA 828 |
REPRESENTATION
| THE APPELLANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | DGB Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Jackson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Maguire & McInerney Lawyers |
Orders
The appeal be dismissed.
The two Applications in an Appeal to adduce further evidence filed by the appellant on 23 October 2012 and 21 November 2012 be dismissed.
The respondent’s and the Independent Children’s Lawyer’s costs of the appeal be reserved.
The respondent and the Independent Children’s Lawyer be at liberty to file and serve any application for costs together with written submissions by
15 February 2013.
The appellant file and serve any written submissions in response by
15 March 2013.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best (No. 2) 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 SYDNEY |
Appeal Number: EA 133 of 2012
File Number: WOC 91 of 2010
| Mr Best |
Appellant
And
| Ms Best |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
introduction
By Notice of Appeal filed 15 October 2012 Mr Best (“the father”) appealed against orders made by Rees J on 28 September 2012 dismissing a series of applications filed by the father pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) on 24 September 2012.
In his application filed 24 September 2012 the father alleged under the heading “Statement of the alleged contravention”, that Ms Best (“the mother”) had, on the occasions and in the manner there particularised, without reasonable excuse, failed to comply with the orders of the Court.
In the appeal the father sought that the Judge’s order be set aside, and that his application be remitted for re-hearing by a judge other than Rees J.
The mother resisted the father’s appeal and sought to maintain the trial Judge’s orders.
The Independent Children’s Lawyer (“ICL”) appeared to resist the father’s appeal insofar as it related to a count alleging breaches of s 65N(2) of the Act by the ICL.
background
On 3 February 2012, after a contested hearing, Ryan J made parenting orders, the effect of which was that the four children of the parties reside with the mother and spend time with the father, relevantly for present purposes, on a supervised basis as follows:
4.1for two hours each alternate weekend supervised at the [Z Organisation at W], (“the contact centre”) on dates and times nominated by the contact centre, until the end of Term 3 2012;
Subject to the satisfaction of a number of conditions precedent, Ryan J’s orders provided for further and unsupervised time to be spent by the father with the children. The breaches alleged by the father in his contravention applications before Rees J, however, related to events prior to the possible commencement of unsupervised time being spent by the children with the father.
Rees J concluded that a number of the father’s contravention applications were not applications which could succeed, for reasons which her Honour articulated. Those which were capable of constituting contravention applications were formulated by the trial Judge as “charges” which were presented to the wife. The wife pleaded not guilty in relation to each such charge. None of the contravention applications was found to have been made out.
On 23 October 2012, the father sought leave to adduce further evidence in the appeal pursuant to s 93A of the Act. The further evidence was contained in an affidavit of the father sworn on that day and, relevantly for present purposes, referred to enquiries made by the father of the W Council with respect to premises occupied by the wife. The basis of the wife’s occupancy of those premises was suggested by the father to be a matter of significance in the contravention proceedings.
Subsequent to the conclusion of the appeal, on 21 November 2012, the father again sought leave to adduce further evidence in the appeal.
It is patently obvious that the application filed 21 November 2012 was in response to, and an attempt to cure, matters which emerged during the course of the hearing on 19 November 2012 as being obstacles to the father’s successful prosecution of his appeal against the substantive parenting orders made by Ryan J.
Insofar as the further evidence related to the substantive parenting orders, we have considered the father’s application in the reasons for judgment in the parenting orders appeal EA 23/2012, which have been delivered concurrently with these reasons. In these reasons we will accordingly consider the remainder of the further evidence which relates to the contravention proceedings.
The mother and the ICL resisted the father’s three further evidence applications in both appeals EA 23/2012 and EA 133/2012.
For reasons which will become apparent, the Court has not invited submissions from either the mother or the ICL in relation to the application for leave to adduce further evidence of 21 November 2012.
the grounds of appeal
Ground 1
Ground 1 of the father’s Notice of Appeal provided:
1. The Judge erred in that she failed to formulate the charges against the respondent mother and or the ICL in a manner that reflected the allegations contained within the applicant fathers application contravention lodged at the Sydney Registrar 24th September 2012. (Errors as in original)
In support of this ground the father complained that the trial Judge’s formulation of his contravention allegations did not “correctly reflect” the substance of the allegations in his material. The father submitted that the first “charge” formulated by the trial Judge, which was referrable to order 8.5 of Ryan J’s orders of 3 February 2012, erroneously “stipulated that the charge alleged that the respondent mother failed to inform the applicant father of changes in relation to adults that reside in her home”.
It was further submitted that the charge which the trial Judge should have formulated was:
... “That the respondent failed to inform the applicant father of adults that reside at the respondents residential address in contravention of order 8.5 made 3 February 2012.” (Original emphasis and error as in original)
Order 8.5 of Ryan J’s orders of 3 February 2012 provided:
8. Each party shall nominate a third person (that is, a nominee by the mother and a different nominee by the father) through whom the parties shall promptly keep each other informed about the following matters:
…
8.5changes to the parties’ residential address and the adults who reside there.
In his application filed 24 September 2012 the father did not identify order 8.5 in paragraph 8 of his application. Paragraph 8 of the application was headed: “State the paragraph number of the attached order, bond, agreement, registered parenting plan or undertaking that you allege has been contravened”.
In his “Statement of the alleged contravention”, none of the six alleged contraventions referred to order 8.5, or made any allegation that the mother had failed to comply with the obligations imposed upon her by order 8.5.
In his affidavit in support of his application filed 24 September 2012, the father articulated at length his allegations in relation to the mother’s asserted contravention of order 8.5.
In her reasons for judgment, the trial Judge (consistent with the transcript), recorded having “formulated” and “charged” the mother with five contraventions, the first of which was “the respondent failed to inform the applicant of changes in relation to adults residing in her home in contravention of order 8.5 made 3 February 2012”.
A balanced reading of the father’s affidavit in support of his contravention application suggests that the terms of the “charge” articulated by the trial Judge reflected precisely what the father was complaining about. The trial Judge’s “charge” accurately reflected the terms of order 8.5 of the orders of 3 February 2012.
Whilst it has not been suggested that the trial Judge’s formulation of the father’s charge in relation to order 8.5 prejudiced the mother, the reality remains that the father’s application, notwithstanding the contents of his affidavit in support of it, did not expressly or impliedly assert a breach of order 8.5. If any party had a possible basis for complaining about the trial Judge’s formulation of the mother’s alleged breach of order 8.5, it was the mother.
By other grounds of appeal, the father complained that the trial Judge had erred in dismissing the charge brought by him in relation to order 8.5. In that respect, it was submitted:
Charge 1
·Order 8.5 exists
·Order 8.5 requires the respondent mother to provide details of all adults that reside at the residential address of the children.
·The respondent mother established her knowledge of the requirements of Order 8.5 in her correspondence to the applicant father.
·The respondent mother confirmed that two (2) male adults reside at the residential address of the children in her correspondence to the applicant father.
·The applicant father requested the respondent mother provide the details of the children’s circumstances in accordance with Order 8.5.
·The respondent mother failed to do so
The trial Judge recorded, accurately we are satisfied, that much of the evidence of the father in relation to this charge could not safely be relied upon. The trial Judge ultimately concluded:
17. I do not accept that the evidence upon which the father relies can be given such sufficient weight, or indeed any weight, so as to overcome the mother’s evidence conveyed through her solicitor’s letter.
Whilst it is less than entirely clear whether the trial Judge found that the father had established a prima facie case, and that, through the letter from her solicitors dated 16 May 2012, which was adduced in evidence by the father, her Honour found that the mother had established a reasonable excuse, we do not find that the trial Judge erred in dismissing this charge.
The letter dated 16 May 2012 annexed to the father’s affidavit asserted that the father had been advised by the mother’s solicitors:
… by letter of 19 August 2011 and e-mailed to you on the same day … that our client was moving to [M] with the children on the weekend of 9 September 2011. There has been no change to our client’s residential address since that date.
No other adults reside with our client and the children. Our client and the children live in a complex of three separate self-contained units. Our client and the children occupy the three bedroom unit and two single males each separately occupy the remaining 2 x one bedroom units. Neither of those males resides with our client. ...
In the absence of other admissible evidence, and the father did not adduce any, the evidence adduced by the father did not in our view establish a prima facie breach of order 8.5. The charge was accordingly appropriately able to be dismissed on that basis.
It is clear beyond doubt from the father’s evidence before the trial Judge, and submissions to this Court, that he did not accept that the mother was living with the children in the circumstances indicated to him by her solicitors. Order 8.5 required notification. It is clear that notification to the father by the mother’s solicitors was consistent with the requirements of order 8.5 of the orders of
3 February 2012. The father’s own evidence reveals that the mother provided such notification. The fact that the father does not accept the accuracy of the notification is irrelevant.
The father’s further evidence contained in his affidavit filed 23 October 2012 included the letter from the mother’s solicitors dated 16 May 2012, a document titled “Property Summary” stamped by the W City Council, and a Google Earth photograph of the mother’s address.
The solicitors’ letter was in evidence before her Honour and cannot properly be considered further evidence. We are not satisfied that the remainder of the further evidence sought to be adduced by the father, if accepted, would demonstrate error in accordance with the principles in CDJ v VAJ (1998) 197 CLR 172. The application will therefore be dismissed.
Ground 2
Ground 2 of the father’s Notice of Appeal provided:
2. The Judge erred in that she concluded that the ICL discontinued his appointment as ICL.
It was submitted by the father:
The ICL has not been discharged by the court, nor has the ICL lodged with the court a notice to withdraw as the ICL nor has there been any orders by any judicial officer discharging the ICL in the matter of [Best] v [Best] WOC91/2010.
Under those circumstances the Judge was in error when she concluded that the ICL was no longer a party to the matter of [Best] v [Best] WOC 91/2010. (Errors as in original)
In what way the error asserted by this ground resulted in appealable error has not been explained by the father, and is not apparent to us. No part of the proceedings before the trial Judge turned in any way upon whether the ICL had, or had not been discharged, or had withdrawn from the proceedings. Nothing more can usefully be said about this ground, except that it has no merit.
Ground 3
Ground 3 of the father’s Notice of Appeal provided:
3. The Judge erred in that she concluded that charges can not be made out against the ICL.
The father submitted in support of this ground:
The ICL is a party to the proceedings in the matter of [Best] v [Best] WOC91/2010 by virtue of his appointment as the ICL in that matter and as such the ICL is equally able to be held fully accountable under law by the court for his actions or lack thereof as much as any other party to that matter including but not limited to being held fully accountable under law for breaches of the rules of the Family Law Court.
Although the father appeared to accept the Court’s suggestion in this regard, we record that no order made on 3 February 2012 imposed an obligation on the ICL. The father’s complaint is based upon a number of misconceptions, as the terms of his submission set out above confirm.
Ground 4
Ground 4 of the father’s Notice of Appeal provided:
4. The Judge erred in that she concluded that charges could not be formulated in relation to breaches of Parental Responsibility.
The father submitted that the charge which the trial Judge should have formulated was to the effect:
... “The respondent mother failed to provide proper and due care of the children in contravention of Order 3 made 3 February 2012 in that the respondent mother exposed the children to or alternatively failed to prevent others from exposing the children to phonographic [sic] internet material.”
It was thus submitted that:
Had the respondent mother alleged that the applicant father exposed the children to or indeed allowed others to expose the children to phonographic [sic] internet material then it is reasonable to assert that this would be a sexual abuse case against the respondent father and as such it is now incumbent upon the court to expect those same levels of accountability from the respondent mother and should she fail that test of accountability then she ought to be expected to answer the allegations made.
In his application filed 24 September 2012, the nearest to a complaint in the terms now asserted by the father appears to have been the fifth “Statement of alleged contravention” and, perhaps, the fourth of such statements which provided:
4. The respondent without reasonable excuse failed to enact the responsibilities expected by the court and or the general community upon her as the holder of sole parental responsibility for the children.
5. The respondent without reasonable excuse failed to protect the children at all times from emotional and or psychological damage.
In his affidavit in support of his application filed 24 September 2012, the father (at pars 78-96) raised matters in relation to the contents of an email allegedly sent to the father by the parties’ eldest daughter on 19 May 2012. Nothing asserted by the father in that affidavit established, at even a prima facie level, that the “mother exposed the children to or alternatively failed to prevent others from exposing the children to phonographic [sic] internet material”. The evidence did not establish that the material referred to in the child’s email to the father was pornographic (as the complaint is intended to assert) or that it was in any way referrable to anything done or omitted to be done by the mother.
We do not accept that the trial Judge erred by failing to formulate a charge in the terms asserted by the father. As is clear from the father’s “Statement of the alleged contravention”, nothing there asserted by the father articulated the complaint which he now criticises the trial Judge for having not formulated.
It would have been a simple matter for the father to have made the allegations in the specific terms in which he did before us. It was not the function of the trial Judge, who was required to hear and determine the alleged contraventions, to formulate a charge for the father which he did not raise.
Even if, contrary to our conclusion, the trial Judge erroneously failed to formulate a charge in the terms asserted by the father, the evidence relied upon by him did not establish, even at prima facie level, at least one essential element of the charge, that being that the child’s “exposure” to material of the kind the email referred to, was in any way referrable to anything done, or not done, by the mother.
In addition, as is clear from the terms of s 70NAA, contravention applications relate to a failure to comply with court orders, rather than asserted failures to comply with particular statutory provisions. The former may constitute the latter, but the latter cannot constitute the former. The charge which the father now asserts the trial Judge should have formulated could not have been successfully prosecuted in reliance upon order 3 of the orders of 3 February 2012. Order 3 provided:
3. That the mother have sole parental responsibility for the children’s long term care, welfare and development.
Ground 5
Ground 5 of the father’s Notice of Appeal provided:
5. The Judge erred in that she concluded that breaches of Parental Responsibility are not breaches of Justice Ryan’s orders dated 03/02/2012 and or the provisions of the Family Law Act
Rather than attempt to paraphrase them, it is preferable to set out in his own words the submissions of the father in support of this ground, which provided:
The key to this question lies in what is sole parental responsibility really all about. Its not simply about decision making for the children. Its far wider than that and it encompasses many things but it also encompasses things such as providing protection of the children from the perils of life and the very ugly & damaging parts of life hence why Order 3 of Justice Ryan’s orders dated 03/02/2012 includes the words “care, welfare and development”
If a holder of sole parental responsibility fails to protect the children from such things as phonographic internet material then they have also failed to protect the children from emotional and psychological damage and in doing so have breached their sole parental responsibility.
To say any thing otherwise would be to also say that the holder of sole parental responsibility would hold that responsibility without any form of accountability and that they could simply do as they wish with or to the children.
Not only does that completely affront the very core and meaning of the Family Law Act in terms of protection of the children from physical, emotional, psychological damage it is simply a nonsense statement and the Judge has gravely erred in concluding that the respondent mother has not breached her sole parental responsibility, and in doing so breached Order 3, by exposing the children to or alternatively failing to prevent others from exposing the children to phonographic internet material. (Errors as in original)
The trial Judge addressed the allegations of the father as they were articulated in the fourth “Statement of the alleged contravention” in his application filed 24 September 2012. Her Honour recorded, correctly in our view, that:
10. In his application at paragraph 9(4), the father asserts that “The respondent without reasonable excuse failed to enact the responsibilities expected by the court and or the general community upon her as the holder of sole parental responsibility for the children”. This assertion does not allege a breach of any order of the court and accordingly no charge can be formulated in relation to it.
There was no contravention alleged by the father pursuant to paragraph 9.4 of his application which was capable of constituting a “charge” of failure to comply with an order without reasonable excuse. There could accordingly be no finding of a prima facie case in those terms. Even if there could, the evidence of the father which could be relied upon in support of such assertions could not establish a prima facie case of the alleged breach.
Ground 6
Ground 6 of the father’s Notice of Appeal provided:
6. The Judge erred in not finding that a prima facie case exists resulting out of the applicant fathers application contravention lodged at the Sydney Registrar 24th September 2012. (Errors as in original)
The father made a number of submissions in support of this ground. To set them out in their own terms in their entirety is to largely reveal why we cannot uphold this ground. The father submitted:
The bases of determining a prima facie case is well established in case law over many years. Its about establishing whither the individual elements of a case exist and at a very elementary level based upon those elements which “could” a case be established in court. Not to be confused with the proving or disproving of facts dependent upon the parties submissions in which it could be said a case has been or has not been proven.
A prima facie case does not rest upon an allegation being proven in a normal manner as Justice Rees asserts but rather it rests upon whither the elements exist upon which a case could be brought are established with the emphasis being on the word could.
Extensive case law shows that three (3) elements are required in order to establish a prima facie case and assumes that the alleged facts are 100% correct as alleged by the prosecutor of a case (ie taken at their highest value), namely;
1.That an order of the court or an element capable of being breached exists.
2.Showing that the accused has knowledge of such an order or element capable of being breached.
3.That a singular fact exists that taken at its highest point (ie assumed to be 100% factual) that could prove that an alleged act by the accused allegedly resulted in the breaching of such an order or an element capable of being breached.
Whither [sic] or not a case is proven to the level of proof required for a conviction under law of the alleged offences is not a matter for the court to decide upon at the prima facie stage – for to do so would result in unnatural justice for both the prosecution and defence of such a case, would result in improper procedural unfairness in that it would prevent both sides presenting their considered submissions to the court, could result in a reasonable apprehension of basis and would be manifestly unjust of the court to do so.
At the prima facie stage the court must ask itself only one question and one question only – could an allegation be bought to bear upon a reasonable view of the facts presented – i.e. are the three (3) elements required to establish a prima facie case present in the facts before the court.
In this case, the three (3) elements required of a prima facie case exist for all charges.
Charge 1
·Order 8.5 exists
·Order 8.5 requires the respondent mother to provide details of all adults that reside at the residential address of the children.
·The respondent mother established her knowledge of the requirements of Order 8.5 in her correspondence to the applicant father.
·The respondent mother confirmed that two (2) male adults reside at the residential address of the children in her correspondence to the applicant father.
·The applicant father requested the respondent mother provide the details of the children’s circumstances in accordance with Order 8.5.
·The respondent mother failed to do so
Charge 2
·Order 4.1 exists and Section 65N(2) of the Family Law act exists
·Order 4.1 provides that the children spend time with the father
·Section 65N(2) prevents persons from hindering a parent spending time with the children.
·The applicant father requested the respondent mother provide her assurance that the harassment of the children by the respondent mother that allegedly contributed to the prevention of the applicant father spending time with the children cease in order that the applicant father could inform [Z Organisation] of that agreement and the change in circumstances so that they could restart the provision of service and enable the respondent father to spend time with the children.
·The respondent mother & the ICL were aware of that need due to correspondence from the applicant father and their responding correspondence to the applicant father.
·The respondent mother and the ICL refused and failed to provide that assurance
Charge 3
·Order 4.1 exists and Section 65N(2) of the Family Law act exists
·Order 4.1 provides that the children spend time with the father
·Section 65N(2) prevents persons from hindering a parent spending time with the children.
·The applicant father requested the respondent mother provide her assurance that the harassment of the children by the respondent mother that allegedly contributed to the prevention of the applicant father spending time with the children cease in order that the applicant father could inform [Z Organisation] of that agreement and the change in circumstances so that they could restart the provision of service and enable the respondent father to spend time with the children.
·The respondent mother & the ICL were aware of that need due to correspondence from the applicant father and their responding correspondence to the applicant father.
·The respondent mother and the ICL refused and failed to provide that assurance
Charge 4
·Order 4.2 exists
·Order 4.2 requires the respondent mother to deliver the children each alternate Saturday following the end of the third school term.
·The respondent mother established her knowledge of the requirements of Order 4.2 in her correspondence to the applicant father.
·The respondent mother failed to deliver the children in accordance with order 4.2 despite numerous written requests from the applicant father for her to do so.
Charge 5
·Order 8.3 exists
·Order 8.3 requires the respondent mother to inform applicant father of appointments with specialist doctors, psychologists, counsellors and or therapists.
·The respondent mother is aware of the requirements of Order 8.3 as evidenced by her correspondence to the applicant father.
·The respondent mother has failed to inform the applicant father of any such appointments.
All of these facts are contained in the applicant fathers affidavit sworn 23rd September 2012 that was submitted to the court on 24th September 2012 as part of the applicant fathers application contravention and under those circumstances the Judge has erred by not finding a prima facie case is established that the respondent mother ought to answer to. (Errors as in original)
As is clear from the submissions, the father asserted that the evidence established a prima facie case in relation to each of the five charges formulated by the trial Judge. We have earlier referred to charge 1. For reasons which we have earlier articulated, the trial Judge was entitled to find that the evidence did not establish a prima facie case of the breach of order 8.5 as charge 1 asserted. We have not based our rejection of the father’s complaints solely on our conclusion in that regard.
In relation to charge 2, the trial Judge recorded, accurately there is no question, that, although the father had not spent time with the children pursuant to order 4.1 of the orders of 3 February 2012, as the father’s own evidence in support of his application established, the reasons for time not being spent with the children were referrable to actions of Z Organisation, essentially it seems, in response to statements made by the father. As the trial Judge found, the evidence did not establish that the father having not spent time with the children pursuant to order 4.1 was referrable to anything done or not done by the mother, but rather to matters between the father and Z Organisation, over which the mother had no control.
No prima facie case was established in relation to charge 3.
In relation to charge 4, as the trial Judge correctly recorded, there was no evidence before her Honour that “Saturday 22 September 2012 was a day upon which the children should have spent time with the father” pursuant to order 4.2. Confirmation of the correctness of the trial Judge’s finding in that regard can be gained from the application to adduce further evidence in the appeal filed by the father after the appeal had been heard.
The further evidence sought to be adduced by the father pursuant to his application filed 21 November 2012 included a calendar showing school holidays in the year 2012 (Annexures C and D to the father’s affidavit). Even if, which has not been established, receiving that evidence would demonstrate appealable error, we would not exercise the discretion to receive it pursuant to
s 93A of the Act.
It is clear beyond doubt that the father only sought, after having this matter drawn to his attention during the appeal, to adduce the evidence of when the school holidays occurred. Receiving the evidence would not entitle the father’s challenges to succeed, given the other basis upon which the trial Judge concluded that charge 4 should fail. That basis has not been shown to have been erroneous.
In relation to charge 5, the finding of fact of the trial Judge (at par 52) has not been shown to have been erroneous. Order 8.3 provided:
8.Each party shall nominate a third person (that is, a nominee by the mother and a different nominee by the father) through whom the parties shall promptly keep each other informed about the following matters:
…
8.3medical appointments by the children with specialist doctors, psychologists, counsellors and/or therapists;
As the trial Judge clearly recognised, and the order clearly confirms, order 8.3 did not contain any time constraint.
Each of the complaints agitated pursuant to this ground fails.
Ground 7
Ground 7 of the father’s Notice of Appeal provided:
7. The Judge erred in finding that no evidence exists that establishes that the mother hindered the children spending time with the father.
The father made a series of submissions in support of this ground, the crux of which was:
The applicant father requested, on numerous occasions, that the respondent mother provide her assurance that the harassment of the children by the respondent mother that allegedly contributed to the prevention of the applicant father spending time with the children in late 2011 would cease.
To read the balance of the submissions of the father in support of this ground is to better understand why it must fail. Quite apart from the fact that the father did not allege the breach of any order in connection with this ground 7, it is unnecessary to reproduce, or attempt to summarise the submissions of the father in support of this ground.
As is not in doubt, and as the trial Judge clearly recognised, no “charge” could have been formulated in the terms asserted by this ground. The trial Judge formulated the father’s complaint in the terms of charge 3 which provided:
3.That the respondent hindered or prevented the applicant and the children spending time together pursuant to the orders made 3 February 2012, OR that the respondent interfered with the applicant and the children benefitting from spending time with each other.
The trial Judge dealt with that charge, and, for reasons which she articulated, concluded that:
39.There is no evidence which establishes that the mother hindered, prevented or interfered with the father’s spending time with the children. Accordingly that allegation is not proven against the mother or against the ICL.
As the trial Judge’s reasons reveal, the father’s own evidence failed to establish a prima facie case in relation to the charge. We have not been referred to anything which establishes that her Honour erred in finding as she did.
Ground 8
Ground 8 of the father’s Notice of Appeal provided:
8. The Judge erred in finding there is no evidence that establishes that the children ought to have been delivered to the father on 22nd September 2012.
We have earlier dealt with this complaint. We have also earlier referred to the second further evidence application of the father, filed after the appeal was heard, seeking to adduce in evidence a calendar showing when school holidays occurred.
For reasons we have also earlier articulated, we would not allow this evidence to be received in the appeal pursuant to s 93A of the Act.
As we have also earlier recorded, allowing the father’s further evidence would not demonstrate that the trial Judge’s decision was erroneous, given her Honour’s undisturbed finding that, even if the date in question was a date when the father was due to spend time with the children, he had not met “the two clear preconditions for unsupervised time with the children” as the trial Judge found at paragraph 48 of her reasons for judgment.
Ground 9
Ground 9 of the father’s Notice of Appeal provided:
9. The Judge erred in finding that Order 4.2 was unenforceable on the evidence before her.
The submissions of the father in support of this challenge asserted:
There is simply no evidence before the court, of any sort, that shows the applicant father has failed to comply with Order 6, indeed the applicant father provided a report from Dr [D] that amongst other things confirms that the father continues to consult with Dr [D].
The Judge has erred in stating the Order 4.1 was a precondition to enacting Order 4.2. There is simply no order of any sort contained within Justice Ryan’s orders dated 03/02/2012 that reflects Order 4.1 is a precondition to Order 4.2.
The Judge made reference to Justice Ryan’s reasons for judgment at paragraph 43 of the Judges reasons for judgment however the Judge failed to include Justice Ryan’s further words contained in paragraph 205 in which the purpose of supervised visits (Order 4.1) was explained.
Namely – “Because the father is likely to be distressed about the outcome, unsupervised time will not commence until end of Term 3 this year. This will give him and Dr [D] a solid period within which to work through the fathers disappointment...…”
Justice Ryan went on further to say at paragraph 208 “I have not ordered, as proposed by the ICL, an automatic suspension of the fathers time with the children if he fails to comply with conditions for it. It is preferable that any decision to continue or suspend the fathers time is informed, not only by his alleged non-conformance, but also the parties and the children’s circumstances at the time.”
It is obvious that the Judge has read Justice Ryan’s reasons for judgment by her comments and yet has failed to reflect upon the fact that there is no automatic suspension of orders is included in any of Justice Ryan’s orders.
Under those circumstances the Judge has erred in finding that Order 4.2 was an order that the respondent mother ought not comply with and further erred in not finding that the respondent mother failed to deliver the children in contravention to Order 4.2 without reasonable excuse. (Errors as in original)
Order 4.2 of the orders of 3 February 2012 provided:
4. That [Mr Best] (“the father”) shall spend time with the children as follows:
…
4.2thereafter, until the end of Term 4 2012, each alternate Saturday from 9.30 am until 6.00 pm;
The father’s submissions overlook the reality that the preconditions to his spending unsupervised time with the children in accordance with order 4.2 included the periods of supervised contact provided by order 4.1. It is not in doubt that the father had not spent supervised time with the children as order 4.1 required.
The trial Judge was undoubtedly correct in concluding, as her Honour did, that there were two preconditions to the commencement of unsupervised time with the children, and that one of those, namely the periods of supervised contact provided by order 4.1, had not occurred.
Ground 10
Ground 10 of the father’s Notice of Appeal provided:
10. The Judge erred in finding that the applicant fathers case was based upon Dr [D] having discharged him from treatment.
The father submitted in support of this ground:
The applicant father did not state that his case was based upon a view that Dr [D] had discharged him from treatment.
The applicant father stated that he continued to consult Dr [D] and indeed annexed to the applicant fathers affidavit sworn 23rd September 2012 at annexure “T” is Dr [D] report, dated 20th September 2012, in which Dr [D] confirms the fathers continued consultation with him. These facts are made clear at paragraph 117 of the applicant fathers affidavit sworn 23rd September 2012. (Errors as in original)
The father has not referred us to anything in the trial Judge’s reasons in which her Honour made a finding in the terms complained of in this ground.
Ground 11
Ground 11 of the father’s Notice of Appeal provided:
11. The Judge erred in not referring the respondent mother and or [Ms WW] of DGB Lawyers to the DPP in relation to offences under Section 327 of the Crimes Act 1900 and under Rule 13.15 (2) of the Family Law Rules.
It is necessary only to record in relation to this ground that nothing to which we have been referred establishes that the trial Judge erred in any of the ways asserted by the father.
Ground 12
Ground 12 of the father’s Notice of Appeal provided:
12. The Judge erred in that she failed to provide the applicant father natural justice.
As is clear from the terms of the father’s submissions, nothing raised by him could enliven appellate intervention in reliance upon this ground.
The trial Judge, at least for the purpose of determining a prima facie case, regarded the allegations of the father as not having been disputed by the mother. As her Honour’s reasons make clear, her rejection of the father’s various “charges” was based upon the father’s own evidence. Given that the trial Judge accepted the father’s evidence for the purpose of determining whether or not he had made out a prima facie case, the Court cannot accept that the trial Judge denied the father natural justice.
In what way it is “arguable that a reasonable apprehension of bias exists” has not been explained, or even hinted at by the father, much less demonstrated.
Ground 13
Ground 13 of the father’s Notice of Appeal provided:
13. The Judge erred in that she failed to find that the mother had not acted in a manner as required by the Family Law Act and in doing so the mother had taken the law into her own hands.
To read this ground is to understand why it cannot possibly succeed.
Ground 14
Ground 14 of the father’s Notice of Appeal provided:
14. The Judge erred in finding that the father had not complied with Justice Ryan’s orders in relation to Order 6
The relevant finding, which the father does not dispute, is that the periods of supervised time spent with the children provided by order 4.1 of the trial Judge’s orders had not been complied with.
This complaint proceeds on a fallacious basis, and cannot succeed.
Ground 15
Ground 15 of the father’s Notice of Appeal provided:
15. The Judge erred in not finding that the mother had failed to comply with Order 4.2 without reasonable excuse.
This ground can be swiftly disposed of. On the father’s own evidence, for whatever reason, the provisions of order 4.1, which were clearly a pre-condition of the commencement of unsupervised time being spent by the father with the children pursuant to order 4.2, had not been complied with.
Compliance with order 6 changed nothing in that regard given that all of the conditions precedent needed to be complied with in order that the provisions of order 4.2 would come into operation.
conclusion
No ground of appeal having been made out, and both further evidence applications of the father being unsuccessful, the appeal and those applications will be dismissed.
Costs
As mentioned, this appeal was heard together with appeal EA 23/2012, the father’s appeal against the substantive parenting orders made by Ryan J on
3 February 2012. In these circumstances, we advised the parties at the hearing that the appropriate course was to reserve costs until the outcome of that substantive appeal was known.
The reasons for judgment in EA 23/2012 dismissing that appeal are being delivered together with these reasons. In that matter we decided to make no order as to costs. However in relation to the contravention proceedings, it is appropriate to allow the mother and the Independent Children’s Lawyer the opportunity to seek costs should they wish.
It is therefore appropriate that the mother and the Independent Children’s Lawyer be at liberty to file an application for costs against the father within a reasonable time. We will make that order and determine any application on the basis of written submissions by the parties.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Ainslie-Wallace JJ) delivered on 1 February 2013.
Associate:
Date: 1 February 2013
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