Caballes & Tallant
[2014] FamCAFC 112
FAMILY COURT OF AUSTRALIA
| CABALLES & TALLANT | [2014] FamCAFC 112 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened consent orders on one occasion but not another, but ordered no sanction – Where the trial judge denied procedural fairness to the father by departing from the procedure outlined in r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) and not explaining to the father the process that was to be used at the hearing – Where the trial judge did not allow the father the opportunity to address him on why in relation to the count not established not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse – Appeal allowed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – PARENTING ORDERS – Where the parties agreed that an order providing for the exchange of information should be set aside – Where the parties proposed a variation of this order – Where the order is in the child’s best interests – Order varied by consent. |
| Family Law Act 1975 (Cth) Pt VII, Divs 12A, 13A, ss 64B, 69ZM, 69ZN, 69ZQ, 69ZT, 69ZX, 70NAC, 70NAE, 70NAF, 70NBA, 112AD Federal Circuit Court Rules 2001 (Cth) rr 1.06, 25B.04 |
| Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Jackson & Fordham (1995) FLC 92-561 Stevenson v Hughes (1993) FLC 92-363 Vakuata v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Caballes |
| RESPONDENT: | Ms Tallant |
| FILE NUMBER: | BRC | 5038 | of | 2010 |
| APPEAL NUMBER: | NA | 69 | of | 2013 |
| DATE DELIVERED: | 27 June 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ryan & Kent JJ |
| HEARING DATE: | 10 April 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1930 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Caballes in person |
| FOR THE RESPONDENT: | Ms Tallant in person |
Orders
The appeal be allowed.
Order 1 (insofar as it relates to count 1 of the father’s contravention application filed 30 July 2013) and orders 2(a) and 2(b) made by Judge Baumann on 18 October 2013 be set aside.
Paragraph 7 (count 1) of the father’s contravention application filed 30 July 2013 be remitted to the Federal Circuit Court for hearing by a judge other than Judge Baumann.
Order 5 of the orders dated 20 August 2012, by consent, be varied as follows:
Exchange of Information
5) That the mother and father shall:
a)keep the other parent informed in writing (by text message or email or other written communication delivered personally) at all times of their residential address and contact telephone number; and
b)obtain written consent from the other parent if one intends relocating their residence beyond the radius of 20 kilometres from where the child attends school;
c)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
d)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Caballes & Tallant 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 BRISBANE |
Appeal Number: NA 69 of 2013
File Number: BRC 5038 of 2010
| Mr Caballes |
Appellant
And
| Ms Tallant |
Respondent
REASONS FOR JUDGMENT
Strickland J
I have had the advantage of reading the draft judgments of Ryan J and Kent J. I agree with the orders proposed by Ryan J but I wish to provide certain discrete reasons for judgment of my own in support of those orders.
I need not repeat the background, nor detail the reasons for judgment of the primary judge; they are amply set out in the reasons for judgment of each of my colleagues.
I am particularly concerned with ground 2 of the Notice of Appeal. Indeed, I consider that the primary judge failed to provide the father with procedural fairness in that he did not apply the process required by r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), and he failed to explain to the father the process that he intended to use. Rule 25B.04 provides as follows:
25B.04 Procedure at hearing
At the hearing of the application the Court must:
(a) inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d) ask the respondent to state the response to the allegation; and
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
As to the other grounds, I propose to deal with them briefly. With ground 1 I am not persuaded that the primary judge “would not listen to statements made by the (father)”, and although his Honour did take over the running of the case, that complaint is clearly caught by ground 2, and I will address it under that rubric. Likewise the complaint that the primary judge “did not allow the hearing to proceed in a satisfactory manner” can be conveniently dealt with under ground 2.
As to ground 3, it could be argued that his Honour did not take account of the importance of the breach of the order in the context of the history of the matter, but as will be seen, ultimately there was no utility in this ground being pursued. I pause to mention that in the context of the utility of the appeal, or of allowing the appeal and remitting the proceedings for rehearing, Kent J makes much of the fact that the father was not “asserting any loss of time or communication with the child”. However, as correct as that is, that was not the point of the order that the father says was breached; it was about the mother keeping the father informed at all times of where she and the child were living given the history of the matter. That is not any less of an order than an order as to spending time or communicating, and a breach of that order is still a breach.
Finally, with ground 4, as will also be seen, that too became a non-event.
Ground 2
The Judicial officer demonstrated bias towards the applicant and as such there was a denial of natural justice. Did not allow a fair and even playing field to present the hearing.
There are clear examples in the transcript of the hearing before the primary judge of his Honour failing to afford the mother procedural fairness, including as outlined by Ryan J, but as Kent J emphasises, there is no cross-appeal by the mother, and thus it is only the father’s position that needs to be addressed. In that regard, it is also apparent from the transcript that his Honour did not give the father the opportunity to first give evidence in support of the allegations (r 25B.04(c)), then hear evidence from the mother (rr 25B.04(d) and (e)), allow the father to cross-examine and then receive submissions from the father as to the charges (I note that although the latter is not a step set out in r 25B.04, it is plain that it is a step that must at least be taken in order to provide procedural fairness). Instead, his Honour put the mother into the witness box, questioned her himself, invited the father to cross-examine, but undertook the questioning himself. His Honour did then invite the father to cross-examine the mother, but in my view the damage had been done by that time. Finally, his Honour, without inviting any submissions from the father, delivered his reasons for judgment. In so doing, as Ryan J says, the father was denied the opportunity to address the primary judge on why, in relation to count 1, not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse.
Following the delivery of his reasons for judgment, his Honour entered into a discussion with the father about his other complaints about the conduct of the mother. However, no orders resulted from this discussion and no further reasons were delivered, and thus it need not be considered in this appeal.
This matter was initially just listed for directions on the father’s application alleging contraventions, but after his Honour made appropriate attempts to broker an agreement, his Honour then embarked on a hearing of the allegations in the manner outlined above. However, to say the least, this process would have been extremely confusing for a person without legal representation, such as the father, and that was clearly evident here both from the transcript and the father’s submissions to us. In my view, once his Honour determined to proceed with the hearing, his Honour should have explained the process that he would be applying, and in any event that process should have been in accordance with r 25B.04 of the Rules. Nor is the difficulty overcome by either the willingness of the parties to resolve the matter on the day it was fixed for directions, or by recognising that a trial judge is able to override a procedural rule of court such as this by applying for example Division 12A of the Family Law Act 1975 (Cth) (“the Act”). As Kent J correctly emphasises in paragraph 87, Division 12A cannot be “utilised to effect a denial of natural justice or of procedural fairness”.
Thus there is merit in ground 2, but I hasten to add, only insofar as the challenge is that his Honour failed to afford the father procedural fairness; like my colleagues, I am not persuaded that the primary judge demonstrated bias toward the father. None of the relevant tests in that regard are satisfied here (for example as in Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337), and of course as Kent J points out a complaint of bias has to be made at the time and cannot be raised for the first time on appeal.
I also agree with the analysis of Ryan J appearing at paragraph 49 wherein her Honour concluded that “the trial judge impermissibly imported into order 5(a) (namely the order said to be breached) the notion of ‘reasonable time’ in lieu of the words contained in the order ‘at all times’.” That analysis was in the context of her Honour considering ground 1. As her Honour identifies the complaint is not “strictly captured” in that ground, and it only emerges in the father’s summary of argument. As such it cannot be a basis for allowing the appeal as her Honour plainly acknowledges.
Ground 3
The Judicial officer did not take into account the severity of the orders that had been breached or that his failure to set appropriate sanctions for a proven contravention would result in further breaching and further applications to the court.
This ground is a challenge to his Honour’s assessment that there should be no penalty for count 2. Of course, the father also says that his Honour should have found that the mother was guilty of count 1, and in that event should have imposed a penalty, but that cannot be an issue in this appeal.
It is beyond doubt that the contravention by the mother was significant, and particularly given the history of the matter. There I am referring to the fact that the mother is said to have moved the residence of the child without notice to the father on a number of previous occasions, and indeed in December 2010 she disappeared with the child and kept him hidden for a period of time, necessitating the father instituting proceedings in the Federal Magistrates Court (as it then was). However, as both Ryan J and Kent J have pointed out, before us the father explained that he did not now seek the imposition of a sanction as a result of the mother being found guilty of this count. Thus, there is no utility in this ground and I would join with Kent J in rejecting it.
Ground 4
The Judicial officer introduced issues outside of the application before him and create [sic] further confusion in regards to how the consent orders should be applied in future. His understanding of our consent orders was contradictory to the consent agreements made between the parties.
This ground also became otiose when the parties agreed before us that order 5(a) of the orders made on 20 August 2012 should be set aside, and a more detailed and specific order should be put in place. We will make that order.
Conclusion
Having found merit in ground 2, to repeat, I would make the orders proposed by Ryan J.
It must be said though that framing the appropriate orders is difficult because his Honour’s orders were confusing in themselves. Although his Honour found count 2 proved but not count 1, his Honour omitted to formally dismiss count 1 and to identify only count 2 in making his orders. Thus, and given the denial of procedural fairness permeated the entire proceedings, it would be tempting to set aside his Honour’s orders in their entirety. However, given that the father was successful with count 2, and he is no longer seeking any penalty for that contravention, there would be no point in remitting count 2 for rehearing.
It might also be thought that given the order that we will be making varying the order said to be breached, any rehearing lacks utility. I make two comments about that. First, the variations to the order do not go to the issue the subject of count 1, namely the alleged failure by the mother to keep the father informed at all times of her residential address. Secondly, applications such as these are common, and given their quasi-criminal nature, I consider it important that the process in hearing and determining them be applied appropriately and transparently, and particularly where neither party has legal representation. Shortcuts should not be taken, and where orders are alleged to be contravened within the meaning of s 70NAC of the Act, that needs to be addressed by affording each party procedural fairness.
Ryan J
By Notice of Appeal filed 15 November 2013, the appellant, Mr Caballes (“the father”) appeals against orders made by Judge Baumann on 18 October 2013.
The proceedings comprised the father’s contravention application (Part VII, Division 13A of the Act) filed on 30 July 2013 in the Federal Circuit Court. By that application, the father alleged that in contravention of order 5(a) made on 20 August 2012, the respondent, Ms Tallant (“the mother”) without reasonable excuse, failed to keep him informed of their son, A’s, residential address; having changed address on or about 10 February 2013 (count 1) and again on or about 5 April 2013 (count 2). In relation to count 1, his Honour determined that the mother did not contravene the order. In relation to count 2, the mother was found to have contravened the order without reasonable excuse. As to count 2, his Honour determined that it would be inappropriate to impose a sanction upon the mother. Pursuant to s 70NBA of the Act, his Honour varied order 5(a) made by consent on 20 August 2012.
The father seeks to set aside all the orders made by the trial judge and that his contravention application be remitted for rehearing before a judge other than Judge Baumann.
The mother seeks to uphold the trial judge’s decision and submits that the father’s appeal should be dismissed.
The orders made on 18 October 2013
The orders made by the trial judge on 18 October 2013 are set out below:
1.No sanctions be ordered against the Mother.
2.Paragraph 5(a) of the Orders made 20 August 2013 be varied so that:
a.Each parent keep the other parent informed in writing (by text message or email or other written communication delivered personally) of their residential address, email address, and telephone number within seven (7) days of any change occurring; and,
b.Each parent obtain written consent from the other parent if they intend relocating their residence beyond the radius of 20km of where the child attends school not less than fourteen (14) days before such change occurs.
The consent order made on 20 August 2012
So as to give the variation order context, the consent order which his Honour varied, is set out below:
…
Exchange of information
5)The mother and father shall:
a)Keep the other parent informed at all times of their residential address and contact telephone number and obtain written consent from the other parent if one intends relocating their residence beyond a radius of 20 kilometres from where the child attends school;
…
Relevantly, the effect of the other parenting orders made on 20 August 2012 is that the child lives with the mother and spends substantial and significant time with the father, the details of which are set out in orders 8 – 13 of those orders. Depending upon whether the father lives within or further than 20 kilometres from the child’s school, there is a different regime for his time with the child during school term. At least insofar as order 5(a) imposed an obligation upon the mother to obtain the father’s written consent to changing the child’s residence beyond a radius of 20 kilometres from the child’s school, the rationale for that order is obvious. Namely, that the mother must first obtain the father’s consent before she took a step which, as a consequence of the other consent orders, would result in a reduction in the amount of time the child would spend with the father during school term.
The trial judge’s reasons
The trial judge delivered oral reasons immediately after the hearing on
18 October 2013 finished.
Following his Honour explaining that the 20 August 2012 orders were made after a significant amount of litigation and with the assistance of an Independent Children’s Lawyer, he identified that the father’s contravention application asserted that the mother had twice contravened order 5 of the consent orders.
It was pointed out that the father carried an onus to establish a prima facie case that the order had been contravened by the mother. His Honour then said that order 5 of the consent orders could be described as “…so imprecise as to timing that proving a breach of the order is difficult” [2]. Notwithstanding the difficulty with the order, his Honour explained that he had decided to permit the parties to have “…their day in court…” and thus he “…allowed…” the mother to give her explanation for changes to the child’s place of residence and the manner in which she informed the father [2].
Applying the balance of probabilities as the standard of proof
(s 70NAF), his Honour then determined the facts.
In relation to count 1, it was found that on or about 10 February 2013, the mother changed the child’s place of residence to a place within 20 kilometres from the child’s home (sic). His Honour determined that the mother told the father about the move by text message on or about 20 March 2013 [3].
Consideration was then given to count 2 and the father’s assertion that the mother, again, on 5 April 2013, changed the child’s residence, the details of which she did not provide. Reference was made to the mother’s evidence to the effect that she thought she had notified the father by text message, which she failed to produce. In circumstances where the father denied that he received a text message on this issue from the mother and, in the alternative, she claimed to have notified him at changeover on or about 15 April 2013, the trial judge determined that the mother had not established that she notified the father of the April 2013 change of residence [5].
At [6] the trial judge said that the question to be answered was “…whether the order has been contravened and if so has there been an unreasonable (sic) excuse offered by the respondent”.
His Honour turned his attention to order 5(a) of the consent orders and, having stated the order, tested it for clarity or, perhaps more accurately, ambiguity. In this regard, his Honour observed that the order “… does not provide a time limit by which … the father – was to be informed of the move” [8] or how notification of a move within 20 kilometres of the child’s school should be provided. Without further deliberation, the trial judge declared himself satisfied that in relation to count 1, “… the mother did, within a reasonable time, inform the father by text” [8]. In relation to count 2, the trial judge repeated his earlier finding that the mother had not notified the father of the 5 April 2013 move.
On the basis of these findings, the mother was found not to have contravened order 5(a) as alleged by count 1 and, in relation to count 2, to have contravened order 5(a) without reasonable excuse.
At [10], it was explained that it would not be appropriate to impose a penalty upon the mother and that in the interests of the child, order 5(a) should be varied in the following manner [11]:
Keep the other parent informed in writing (by text message or email or other written communication delivered personally) of their residential address and contact telephone number within seven days of any change occurring and obtain written consent from the other parent if one intends relocating their residence beyond a radius of 20 kilometres from where the child attends school not less than 14 days before such change occurs.
(original emphasis)
His Honour then invited the parties to say whether or not they agreed to a variation of order 5(a) in the manner proposed. The transcript shows that neither party gave their consent.
Order (5)(a) was then varied and the effect of the variation explained.
Notice of appeal
The orders sought in the father’s Notice of Appeal are set out below:
1.That the matter be reheard before a new judicial officer.
2.That the judicial officer be excused from hearing any more matters in relation to these parties.
3.That comments made by the judicial officer in regards to issues that were not related with the contravention application, be disallowed and remove from record.
We informed the father that it was not open to this court to make orders 2 and 3.
Grounds of appeal
The grounds of appeal set out in the father’s Notice of Appeal are:
1.The Judicial officer would not listen to statements made by the applicant or allow the applicant to present, information and evidence. He did not allow the hearing to proceed in a satisfactory manner.
2.The Judicial officer demonstrated bias towards the applicant and as such there was a denial of natural justice. Did not allow a fair and even playing field to present the hearing.
3.The Judicial officer did not take into account the severity of the orders that had been breached or that his failure to set appropriate sanctions for a proven contravention would result in further breaching and further applications to the court.
4.The Judicial officer introduced issues outside of the application before him and create (sic) further confusion in regards to how the consent orders should be applied in future. His understanding of our consent orders was contradictory to the consent agreements made between the parties.
Notwithstanding ground 3, the father told us that no complaint was made about the trial judge’s failure to impose a sanction on the mother but rather that
his Honour erred by failing to find that the mother contravened order 5(a) in the manner alleged by count 1. This invited consideration of the utility of the appeal and whether, even if error was established, the appeal should nonetheless be dismissed. These misgivings having been explained to the parties, I accept the father’s contention that a proper determination of whether or not the mother contravened the order as alleged by count 1 was necessary and entitled him to press the appeal. Of course, should he succeed and the matter is remitted for rehearing, he may nonetheless decide to pursue the imposition of a sanction.
Discussion
Both grounds 1 and 2 challenge the manner in which the hearing was undertaken by the trial judge and, thus, excluding the bias challenge raised in ground 2, can be dealt with together. As I understand the gravamen of the submissions to be that the trial judge failed to afford him procedural fairness by:
(a)conducting the hearing other than in accordance with r 25B.04 of the Rules;
(b)having apparently determined to adopt a different procedure for the conduct of the hearing, failed to explain the manner in which the hearing would be undertaken; and
(c)denied the father the opportunity to present his case, including testing the mother’s evidence.
The procedure to be followed at the hearing of a contravention application in the Federal Circuit Court is governed by r 25B.04 of the Rules. That rule is set out below:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b) ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d) ask the respondent to state the response to the allegation; and
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
Note: For the orders that may be made by the Court, see sections 67X, 70NBA, 70NCB, 70NDB, 70NDC, 70NEB, 70NFB, 70NFF, 112AD, 112AH and 112AP of the Family Law Act.
In relation to the procedure for the hearing adopted by the trial judge, the transcript confirms that the parties were given insufficient opportunity to present their cases. For example, neither party was invited to make submissions about whether or not a prima facie case was established.
Having determined that in relation to both counts the father established a prima facie case, the mother was directed to give evidence. Without first allowing her to give evidence in chief, she was questioned by the trial judge. After she acknowledged she had said all she wanted to say, the father was then asked if he wanted to cross-examine, which he did. However, as the father says, this opportunity was compromised by frequent interruption from the trial judge such that in truth he was denied a proper opportunity to test the mother’s evidence.
Somewhat curiously, his Honour then directed the father to give evidence. This was a forensic decision that should have been left to the father. As he did when the mother entered the witness box, the trial judge then cross-examined the father. Having satisfied himself that in answering his Honour’s questions, the father had said all he wanted to say, the mother was invited to cross-examine. Again the trial judge took over the witness. Without giving the parties an opportunity to make submissions, judgment was delivered. Relevantly, the father was denied the opportunity to address the trial judge on why, in relation to count 1, not only had he established a prima facie case but the mother had failed to establish a reasonable excuse. Although it cannot influence the outcome of the appeal, it should not pass without comment that the mother was denied the opportunity to address the court on why her evidence established that she had not understood the obligations imposed on her by the order, and thus she had a reasonable excuse (s 70NAE).
Once his Honour decided that he would depart from the procedure contained in r 25B.04 of the Rules, it was incumbent upon him to design a fair procedure for the hearing and explain the altered procedure to the parties. The altered procedure was not explained to the parties and did not afford either party a fair hearing. I am unable to accept that, in the particular circumstances of this hearing, any comfort can be taken from relevantly, the father’s confirmation that he had given the evidence he wished to give. For concessions of this type to have any value, I would need to be satisfied they were at least considered. The transcript does not suggest this was the case. It follows that the procedural fairness challenges are made out.
Although not strictly captured by ground 1, in his summary of argument the father argued that the trial judge erred by failing to find that the mother contravened order 5(a) in the manner alleged by count 1.
It will be recalled that in relation to count 1, the trial judge determined that the father had established a prima facie case to the effect that consequent on her move on or about 10 February 2013, the mother had not, in accordance with order 5(a), kept the father “…informed at all times of [her and the child’s] residential address…”. The trial judge then said that order 5(a) does not provide a time limit within which notice of the change in residence was to be provided or how that information was to be given. Having found that the mother notified the father on or about 20 March 2013, the trial judge reached the conclusion at [8] that the mother provided the relevant notification “…within a reasonable time…” as a consequence of which count 1 was dismissed.
In coming to this view, it would appear that the trial judge decided either that the mother had not intentionally failed to comply with the order (s 70NAC(a)(i)) or had made a reasonable attempt to comply (s 70NAC(a)(ii)). When regard is had to the imperative in order 5(a) that the parties keep each other informed “…at all times…” and the mother’s evidence that she took about five weeks to notify the father, it is difficult to see how the trial judge could dismiss count 1 without finding that the mother did not understand the obligations imposed by the order. That particular finding not having been made, I can only conclude that the trial judge impermissibly imported into order 5(a) the notion of “reasonable time” in lieu of the words contained in the order “at all times”. It follows that had the father not already established a basis upon which his appeal should succeed, subject to affording the mother procedural fairness, I would have contemplated him being given leave to amend his notice of appeal so as to capture this otherwise meritorious point.
Ground 1 and the procedural fairness component of ground 2 are established.
By ground 2, the father also asserts an apprehension of bias in the trial judge. To the extent that the father relies on the manner in which the hearing proceeded before his Honour, those issues have already been dealt with. Although the procedure adopted by his Honour was flawed, I do not accept that a fair minded lay observer might reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the question he was required to decide (Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337). Nor would the historical matters referred to in the father’s written submissions give rise to an apprehension of bias in the trial judge.
Each of these factors alone is fatal to the apprehension of bias challenge raised by ground 2. In addition, it is well settled that it was incumbent upon the father to first apply to his Honour that he recuse himself before that issue could be raised on appeal (Vakuata v Kelly (1989) 167 CLR 568).
The apprehension of bias challenge contained in ground 2 is not made out.
By ground 3, the father challenged the trial judge’s decision not to impose a sanction on the mother. Notwithstanding his written submissions to the effect that some unspecified sanction would have been appropriate, before us, the father explained he did not now seek the imposition of a sanction on the mother.
Ground 3 is thus without foundation.
By ground 4, the father challenged the manner in which the trial judge varied order 5(a) of the 20 August 2012 orders. Before us, the parties agreed that this order should be set aside and an order more in keeping with the original order was discussed with them and made by consent.
An order varying a parenting order is itself a parenting order (s 64B(i)(a)). Considered in the context of the totality of the orders made on 20 August 2012, the variation to order 5(a) proposed by the parties before us is in the child’s best interests
Thus, ground 4 became irrelevant.
Conclusion
I would allow the appeal and in relation to count 1 of the father’s contravention application remit his application for rehearing. On remission, the matter should be heard by a judge other than Judge Baumann.
Kent J
By Notice of Appeal filed 15 November 2013, Mr Caballes (“the father”) appeals against the orders made by Federal Circuit Court Judge Baumann on 18 October 2013 at the conclusion of the hearing of the father’s contravention application brought against Ms Tallant (“the mother”), who is the respondent to this appeal.
In that contravention application the father alleged that on each of on or about 10 February 2013 and on or about 5 April 2013 the mother contravened paragraph 5(a) of final parenting orders (“the primary orders”) made on 20 August 2012, by relocating her residential address without informing the father. Paragraph 5(a) provided:
Exchange of Information
5.That the mother and father shall:
a)keep the other parent informed at all times of their residential address and contact telephone number and obtain written consent from the other parent if one intends relocating their residence beyond a radius of 20 kilometres from where the child attends school;
…
The trial judge found that the mother did not contravene order 5(a) with respect to her 10 February 2013 relocation but did contravene it without reasonable excuse with respect to her 5 April 2013 relocation. The trial judge ordered that no sanctions be ordered against the mother.
In exercise of the power under s 70NBA of the Act the trial judge also made an order varying the terms of paragraph 5(a) of the primary orders for it to provide as follows:
(a)Each parent keep the other parent informed in writing (by text message or email or other written communication delivered personally) of their residential address, email address, and telephone number within seven (7) days of any change occurring; and,
(b)Each parent obtain written consent from the other parent if they intend relocating their residence beyond the radius of 20km of where the child attends school not less than fourteen (14) days before such change occurs.
Each party was self-represented both in the proceedings below and on this appeal.
Taken from his Notice of Appeal the father sought on appeal, firstly, an order that his contravention application be remitted for rehearing by a Federal Circuit Court Judge other than Judge Baumann; secondly, an order that Judge Baumann “be excused from hearing any more matters in relation to these parties”; and, thirdly, an order “that comments made by the judicial officer in regards to issues that were not related with the contravention application, be disallowed and remove [sic] from the record.”
At the outset of the hearing of the appeal it was explained to the father that the second and third of the orders he sought were not orders this court could make, even if his appeal was successful. The father accepted that to be so and did not pursue such orders in the appeal. As will be shortly discussed, some of the father’s written summary of argument in support of the appeal was directed to the orders he sought on appeal which were not ultimately pursued.
That left the order the father sought for his contravention application to be remitted for rehearing. Asked by this court whether, by this course, the father was seeking that some sanction be imposed on the mother, the father confirmed that he was not seeking any sanction. That is, the father confirmed that his sole purpose in seeking a rehearing of his contravention application was to pursue a finding against the mother that she had contravened the primary orders on both occasions alleged, that is including in respect of her relocation on or about 10 February 2013. Nevertheless the father confirmed on the hearing of the appeal that he was not seeking, and would not on any rehearing be seeking, that any sanction be imposed.
Moreover, the father confirmed on the hearing of the appeal, as he had done below, that the mother’s failures to notify him of her changes of address on both occasions was not associated with, or accompanied by, any failure by the mother to accommodate or facilitate the child spending time with or communicating with the father as provided for in the primary orders. That gave an important context to the hearing below, as did the fact that neither of the mother’s relocations were beyond the 20 kilometre radius specified in order 5(a).
Given the father’s stated position, which raised questions as to the utility of any rehearing of the contravention application if the appeal succeeded, and thus the utility of the appeal itself, we sought to address any concerns of the father as to the trial judge having ordered a variation to paragraph 5(a) of the primary orders. Conscious that each party was self-represented, and taking into consideration the submissions each made to this court about the form of paragraph 5 and the practicability of it, we provided to the parties the following re-drafted form of paragraph 5 of the primary orders as follows:
Exchange of Information
5.That the mother and father shall:
a)keep the other parent informed in writing (by text message or email or other written communication delivered personally) at all times of their residential address and contact telephone number; and
b)obtain written consent from the other parent if one intends relocating their residence beyond the radius of 20 kilometres from where the child attends school;
c)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child;
d)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child.
Both parties confirmed to this court their consent to a variation of the primary orders in accordance with these proposed terms.
Nevertheless, the father wished to pursue his appeal and an order that his contravention application be remitted for rehearing in the Federal Circuit Court.
Background
On 20 August 2012 the father, the mother and the Independent Children’s Lawyer appointed to independently represent the interests of A born in 2007 (“the child”) reached agreement on the parenting orders to be made in the child’s best interests. That agreement was reflected in final parenting orders made by consent that day (“the primary orders”) by Federal Magistrate Baumann, as his Honour then was.
The primary orders brought a conclusion to parenting proceedings which had been on foot since 2010.
Briefly stated, the primary orders contained detailed terms dealing with, inter alia, the parents having equal shared parental responsibility; the child’s living arrangements with provisions for the child to live with the mother and have regular weekly time and communication with the father; provisions for the child’s time with the father in school holiday periods; and other matters.
Included in the primary orders was paragraph 5(a) earlier referred to.
On 30 July 2013, the father filed a contravention application under Division 13A of Part VII of the Act. By that application the father alleged that on each of “on or about 10 February 2013” and “on or about 5 April 2013” the mother, without reasonable excuse, did not inform the father of her residential address “when she moved house with our child…”.
Taken from the trial judge’s reasons for judgment, it was not in issue in the proceedings below that the mother did in fact relocate on or about each of those dates alleged. It was also not in issue that it was by text message sent on 20 March 2013 that the mother first informed the father of her relocation on or about 10 February 2013.
The factual issues in dispute were confined to the 5 April 2013 relocation. The mother contended that following her relocation she forwarded a text message “a week afterwards” but the trial judge did not accept that evidence, preferring the father’s evidence that no such message was received. The mother’s alternate contention was that she directly informed the father at a handover of 15 April 2013 of her then recent relocation but the trial judge did not accept that evidence, again preferring the evidence of the father.
In the result the trial judge made the orders already outlined above against which the father appeals.
Grounds of Appeal
The grounds of appeal in the Notice of Appeal are as follows:
1.The Judicial officer would not listen to statements made by the applicant or allow the applicant to present, information and evidence. He did not allow the hearing to proceed in a satisfactory manner.
2.The Judicial officer demonstrated bias towards the applicant and as such there was a denial of natural justice. Did not allow a fair and even playing field to present the hearing.
3.The Judicial officer did not take into account the severity of the orders that had been breached or that his failure to set appropriate sanctions for a proven contravention would result in further breaching and further application to the court.
4.The Judicial officer introduced issues outside of the application before him and create further confusion in regards to how the consent orders should be applied in future. His understanding of our consent orders was contradictory to the consent agreements made between the parties.
Nature of Hearing Below – Relevant Statutory Provisions and Procedural Rules
As each of the grounds of appeal advanced by the father challenge in one respect or another the manner in which the hearing below proceeded, and the manner in which the trial judge conducted that hearing, it is useful to commence discussion of the grounds of appeal by setting out the relevant statutory context and procedural rules of court governing such a hearing.
It has long been recognised in this jurisdiction that in the field of orders affecting children there is a dichotomy between enforcing orders on the one hand and punishing a person for contempt on the other; and in that context the difference between the subject matters of such orders, that is, a child’s or children’s best interests or welfare as compared with a property or monetary order in other civil jurisdictions. In Jackson & Fordham (1995) FLC 92-561 the Full Court, having referred to the above dichotomy observed (at p 81,593):
Nowhere in our court system is the difference between enforcement of orders and contempt so important as in the family law area. The vast majority of applications in this field of family law is in relation to orders made regarding the welfare of children, e.g. access, custody, abduction matters. The applications are made by one parent against another. One parent wants an order enforced by coercion. The order is not a one off property or monetary order as are the orders in other jurisdictions. The parents will remain such and hence have an ongoing relationship with each other irrespective of the coercive order made in the enforcement proceedings. …
In 2000, the Family Law Amendment Act 2000 (Cth) created Division 13A, a new “parenting compliance regime” within Part VII of the Act which entirely superseded the enforcement powers contained in Part XIIIA of the Act so far as orders affecting children are concerned.
Then, by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Division 13A was revised and Division 12A was introduced into Part VII of the Act. Importantly, the legislature determined that the provisions of Division 12A should apply to contravention applications in respect of orders affecting children, given that such applications were within Part VII of the Act (s 69ZM).
The combined effect of these amendments of most relevance to consideration of the nature of the hearing below is that:
(a)Section 70NBA within Division 13A of the Act provides power for a Court exercising jurisdiction under the Act, when dealing with a contravention application, to vary the primary order whether or not a contravention is made out; and
(b)As Division 12A applies there are important consequences. First, the Court is to give effect to the five principles in s 69ZN. Those principles require the Court:
(i)to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
(ii)to actively direct, control and manage the conduct of the proceedings;
(iii)to conduct proceedings in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)the parties to the proceedings against family violence.
(iv)to conduct the proceedings, as far as possible, in a way that will promote cooperative and child‑focused parenting by the parties;
(v)to conduct the proceedings without undue delay and with as little formality, and legal technicality and form, as possible.
(c)Second, in giving effect to those principles the duties mandated by s 69ZQ are imposed upon the Court, including the duties identified in the following subsections, that is to:
…
(a)decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily; and
(b)decide the order in which the issues are to be decided; and
…
(g)deal with as many aspects of the matter as it can on a single occasion;
(d)Third, s 69ZX within Division 12A sets out the Court’s powers and includes, for example, in subsection (1) the power of the Court to give directions or makes orders. These include, by reference to the following subparagraphs of that subsection, powers to:
(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c)give directions or make orders about how particular evidence is to be given; and
…
(e)ask questions of, and seek evidence or the production of documents or other things from, parties.
(e)Importantly, subsection (2) of section 69ZX makes reference to directions or orders about the following things in the subparagraphs identified:
…
(c) limiting the time for oral argument; or
(d) limiting the time for the giving of evidence;
or…
(g) that evidence in relation to a particular matter not be presented by a party; or
(h) that evidence of a particular kind not be presented by a party; or
(i) limiting, or not allowing, cross-examination of a particular witness;
…
(f)Finally, s 69ZT provides that certain exclusionary provisions of the Evidence Act 1995 (Cth) do not apply to proceedings to which Division 12A applies.
Clearly enough the provisions of Division 12A dictate that a judicial officer hearing and determining proceedings to which Division 12A applies, including a contravention application under Division 13A, should take an active role in directing, controlling and managing the conduct of the proceedings including by the exercise of the powers identified in Division 12A which have been referred to.
This is not to say that Division 12A operates or can be utilised to effect a denial of natural justice or procedural fairness. Rather the principles expressed in s 69ZN direct attention upon the need for “child-related proceedings” to be focused upon their primary subject matter, the needs and interests of the child or children concerned.
Turning then to relevant procedural rules of court, r 25B.04 of the Rules sets out the following as the procedure which that court must follow at the hearing of a contravention application under Division 13A of Part VII of the Act:
25B.04 Procedure at hearing
At the hearing of the application the Court must:
(a)inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d) ask the respondent to state the response to the allegation; and
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
Several observations need to be made about the application of that rule. First, it is well recognised that procedural rules of this type in the context of contravention or contempt applications operate for the benefit of the respondent to the application. Thus they may be waived by the respondent or may be departed from if there is no injustice or prejudice occasioned to the respondent (per Fogarty J in Stevenson v Hughes (1993) FLC 92-363 at p 78,816 cited with approval in Jackson & Fordham at p 81,595). Here, it is to be noted that no complaint is advanced by the mother as to any departure of the trial judge from the strict application of the procedure prescribed by the rule.
Second, by analogy with Jackson & Fordham in which the Full Court held that the rules relating to an application under s 112AD of the Act are procedural and O 4 r 1 (the then applicable rule allowing the Family Court to dispense with rules requirements) was applicable, r 1.06 of the Rules, the rule allowing that court to dispense with rules requirements, is likewise applicable.
Third, s 81 of the Federal Circuit Court of Australia Act 1999 (Cth) which gives rule-making powers to the Judges of that Court provides in subsection (2):
(2)Rules of Court have effect subject to any provision made by another Act, or by rules or regulations under another Act, with respect to the practice and procedure in particular matters.
It follows that the application by a Federal Circuit Court judge of r 25B.04 in a contravention application gives ground where necessary to s 70NBA (the power to vary parenting orders) and Division 12A of the Act. A procedural rule of court does not operate in priority to the mandates of the statute under which jurisdiction is exercised.
A contravention application under Division 13A with respect to orders affecting children brings into focus the interests of the respondent to the application, who may face sanction, as well as the interests of the child or children the subject of the orders, particularly when variation of the primary order under s 70NBA is in prospect.
Rule 25B.04 of the Rules is no more or less than a reflection of the need, in the interests of justice given the prospect of sanction of the respondent, to appropriately protect the respondent’s interests and not cause any prejudice to those interests by the manner in which the application is heard and determined. The severity of the alleged contravention and the consequent potential or severity of imposition of sanctions are obvious considerations. Balanced against that is the need for the court to apply Division 12A of the Act given that these are “child-related proceedings” with that focus.
In short, in any such case an appropriate balance must be struck between the interests of the respondent on the one hand and the interests of the child or children the subject of the order on the other, in the manner in which the proceeding is heard and determined. In cases where the alleged contravention is serious (within the meaning of subdivision F of Division 13A) adherence to the procedure laid down in r 25B.04 in determining the application before taking any further steps to deal with variation under s 70NBA would achieve both objectives.
In this case it bears repeating that the father was not asserting any loss of time or communication with the child as being associated with the alleged contraventions; nor was there any suggestion that either of the mother’s relocations were beyond the 20 kilometre radius identified in paragraph 5(a).
The hearing below
As the transcript of the proceedings below reveals the father’s contravention application had only been listed for directions on 18 October 2013, not for final hearing. However, at the very outset when the trial judge first mentioned the matter each of the father and the mother expressed to the trial judge the need for some variations to the primary orders (bringing the variation power in s 70NBA into focus) and each party confirmed a desire to have their issues resolved that day.
When the hearing resumed the trial judge first clarified with both parties, and that the mother thus understood, the nature of the contraventions alleged. The trial judge then obtained confirmation from the father that there was no issue that the time the child was to spend with the father under the primary orders had proceeded as ordered. That obviously gave an important context to the contraventions alleged.
The father then advanced that apart from his contravention application, “there are other issues that need clarification”. The trial judge pointed out to the father that he would need to file an application to agitate other issues, but sought from both parties information as to the nature of the issues in dispute, and whether they were “serious issues”. When the father advised the issues were “serious’ the trial judge reiterated the need for an application; explained to the father that it would be unfair to him for the trial judge to require the father to articulate those issues then; and explained to both parties that if there were minor matters which would make the primary orders clearer he would hear from them on such issues, but otherwise would first deal with the contravention application.
This provides an important context to complaints the father agitates in his grounds and summary of argument to the effect that he was not afforded any opportunity to present evidence or information, a topic which will be shortly revisited.
Moving then to the contravention application the trial judge explained to the mother the nature of the contraventions alleged and asked for her response. The mother then advanced that she denied the allegations in so far as a failure to notify the father of her changes of address were concerned. Being satisfied on the father’s affidavit in support of the application that a prima facie case was established the trial judge sought that the mother give formal evidence, given her response.
These steps conform with the requirements of r 25B.04 of the Rules. To the extent that the trial judge did not invite the mother to cross-examine the father on his affidavit, for reasons which will shortly be discussed, there was no prejudice to the mother, and in any event the mother does not advance any claim of prejudice in this appeal.
The evidence elicited by the trial judge from the mother established that there was no issue that on each of 10 February 2013 and 5 April 2013 the mother changed residence but remained within a radius of 20 kilometres of the child’s school. Moreover, that evidence established that there was no issue that it was on 20 March 2013 that the mother first notified the father of her 10 February 2013 relocation. The only issue of fact was whether or not the mother notified the father following her relocation on 5 April 2013.
In oral evidence the mother advanced the proposition that she had sent a text message to the father about a week after her 5 April 2013 move. In the course of the father’s cross-examination of the mother, when the mother again referred to a text message sent in respect of the 5 April 2013 move, the trial judge afforded the mother the opportunity to access her telephone to produce the text message. It was not produced.
The mother then advanced the proposition that she orally informed the father of her 5 April 2013 move at a changeover for the child on or about 15 April.
Because the mother’s oral evidence put in issue in the respects identified notification about the 5 April move the trial judge afforded the father the opportunity to give oral evidence in rebuttal. The father denied receipt of any text message or that the mother advised him of her relocation in the communication at a changeover as she had alleged. Notably, the trial judge ultimately accepted the father’s version. Thus the trial judge resolved the only issues of fact on the application in favour of the father, again an important context to the father’s complaints on this appeal.
Also important in this context is that when the father was giving oral evidence the trial judge asked the father, “Anything else you want to tell me?” After advising the court that he recorded conversations between himself and the mother, about which there was a brief exchange between the father and the trial judge, there was then this exchange:
HIS HONOUR: Okay. All right. Nothing else, then?
MR [CABALLES]: No, your Honour. That’s all.
After some brief cross-examination of the father by the mother his Honour then delivered judgment on the contravention application resolving the only disputed issues of fact in the father’s favour. The reasons included the trial judge’s variation of order 5(a).
Importantly it was only after delivering reasons with respect to the contravention application that the trial judge embarked upon further discussion with the parties and entertained submissions from each about other issues in an obvious attempt to resolve, if possible, further issues. In the result nothing came of that attempt in terms of any further orders being made.
This provides an important context to the father’s grounds of appeal now to be considered and his summary of argument in support of those grounds.
Ground 1: The Judicial officer would not listen to statements made by the applicant or allow the applicant to present, information and evidence. He did not allow the hearing to proceed in a satisfactory manner.
Taken from paragraph one of the father’s summary of argument, the first complaint the father agitates in support of this ground is that the trial judge suggested mediation to “sort out our issues”.
However, as the transcript reveals, whilst the trial judge did suggest mediation that only occurred after the trial judge had completed the hearing and determination of the contravention application and had delivered reasons. That suggestion came from the trial judge only in the course of the subsequent discussion of remaining issues and after, as earlier discussed, it was apparent those issues could not be resolved. There is thus no substance in this complaint.
This is but one example contained within the father’s summary of argument in support of this, and other of his grounds of appeal, where the father’s complaints about the conduct of the hearing below do not relate to the manner in which the trial judge heard and determined the contravention application, but to the subsequent part of the hearing. As an appeal is from orders made, and no orders resulted from the subsequent part of the hearing referred to, there is no relevance on this appeal of such complaints.
Moreover, such complaints are obviously advanced by the father in support of the second and third of the orders he sought on appeal, which, as earlier discussed, he did not pursue on appeal once he was informed by this court these were not orders this court could make.
To the extent that the father raises complaint about the trial judge’s involvement in the cross-examination of each party it is difficult to reconcile that complaint with the outcome of the cross-examination. Not only did the trial judge’s involvement in cross-examination elicit the central facts relevant to the contravention application it was on the evidence so elicited that the trial judge resolved the only disputed issues of fact in the father’s favour.
Each party below was self-represented and neither legally qualified. Cross-examination by one estranged former partner of the other in the context of a contravention application not only has the potential to divert away from central issues but has significant potential to create further animosity between the two parents. A fair reading of the transcript reveals that the trial judge assisted each party in the course of cross-examination either when that party was unsure of the approach to be taken; or to ensure that issues central to the contravention application were the subject of evidence.
For example, in the case of the father at the very commencement of what was to be his cross-examination of the mother, the father commenced with a statement addressed to the trial judge rather than a question directed to the mother. That statement was that the father had a copy of a text message the mother sent to him on 20 March 2013 notifying the father of the mother’s 10 February relocation. The trial judge appropriately converted that statement into a proposition put to the mother for her response. Soon afterwards, when again the father addressed a statement to the court, rather than a question to the mother, about never receiving any notification as to the mother’s 5 April 2013, the trial judge again converted the father’s statement to a proposition put to the mother and the trial judge legitimately tested the mother’s responses.
The trial judge only terminated the mother’s cross-examination when the factual issues in dispute central to the contravention application had been fully tested. It was on those facts that the trial judge found that the mother had contravened paragraph 5(a) of the order without reasonable excuse.
In the case of the mother’s cross-examination of the father the trial judge first elicited evidence in chief from the father to convert the statements or propositions made by the father (as referred to) into evidence. The trial judge likewise converted statements made by the mother to the court into propositions put to the father for his response.
On a review of the transcript of what occurred below there is no substance in the father’s complaints concerning the trial judge’s role when each party respectively gave oral evidence below.
The remaining complaint advanced in the father’s summary of argument in support of this ground is to the effect that the provision in order 5(a) as to “at all times” is clear and required no explanation and given that the mother first informed him on 20 March 2013 of her 10 February 2013 relocation, this could not constitute compliance with the order. The father’s argument assumes that the trial judge concluded that it did constitute compliance.
It is clear that in first notifying the father on 20 March 2013 of her relocation on 10 February 2013 the mother did not comply with paragraph 5(a) of the order. However, the trial judge did not conclude any finding to the effect that this did constitute compliance. What the trial judge actually found was that the mother had not contravened the order. The difference between non-compliance with an order and non-compliance which constitutes contravention of an order is critical and is apparent from s 70NAC of the Act which relevantly provides:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order.
Having recorded in paragraph 3 of the reasons the finding that the mother relocated on 10 February 2013 and that the mother informed the father of this move by text message on 20 March 2013, the trial judge set out in paragraph 7, in full, the terms of paragraph 5(a) of the primary orders. Then at paragraph 9 of the reasons the trial judge recorded his ultimate finding, relevant to the 10 February 2013 relocation:
…that the mother did not contravene the order, as alleged, on or after 10 February…
(emphasis added)
The necessary implication of that finding is that the trial judge was not satisfied on the balance of probabilities that the mother had either:
a)intentionally failed to comply with the order; or
b)made no reasonable attempt to comply with the order.
Relevant to the trial judge’s ultimate finding referred there was this exchange during the mother’s oral evidence (transcript p 8 line 6 to p 9 line 19):
HIS HONOUR: Okay. Now, you were served with an application for contravention? You’ve read that?
MS [TALLANT]: Yes, I have read it.
HIS HONOUR: And you’ve read the affidavit of the father in support of that application for contravention?
MS [TALLANT]: Yes.
HIS HONOUR: He says this:
On about 10 February the respondent moved from the dwelling she was sharing with her mother, with the child, and did not inform me of this move until four weeks after she had moved.
I don’t need you to tell me about anything about the child was concerned; that’s not relevant for this application. That’s the allegation he makes; that’s the evidence. What do you say about that?
MS [TALLANT]: I didn’t think that there was a time limit issue with informing him. I still informed him as best as I could when I could.
HIS HONOUR: Well, madam, just so you be clear about what the order says, you knew – you know, of course, that the father is a very precise person, likes things complied. And you know what the order meant. Clause 5 is this:
The mother shall keep the other parent informed at all times of their residential address and contact ..... and obtain written consent from the other parent if one intends relocating their residence beyond the radius of 20 kilometres from where the child attends school.
MS [TALLANT]: That’s right.
HIS HONOUR: Did you relocate more than 20 kilometres?
MS [TALLANT]: No.
HIS HONOUR: Right. But you accept that you had to keep the father informed of your move in February?
MS [TALLANT]: Which I believe I have.
HIS HONOUR: When did you do that?
MS [TALLANT]: I don’t have ‑ ‑ ‑
HIS HONOUR: How did you communicate that?
MS [TALLANT]: I don’t have copies of evidence, or anything, when I’ve ‑ ‑ ‑
HIS HONOUR: Well, from your memory ‑ ‑ ‑
MS [TALLANT]: It would be ‑ ‑ ‑
HIS HONOUR: ‑ ‑ ‑ did you do it before you moved?
MS [TALLANT]: It would be from text message after I had moved.
HIS HONOUR: After you moved? But you’re not sure how long after?
MS [TALLANT]: No.
(original emphasis)
As noted, on the evidence the trial judge was satisfied that the text message referred to by the mother in that passage of evidence was actually sent on 20 March 2013.
In the exercise of his discretion the trial judge, who had the accepted advantage compared to this court of seeing and hearing the mother give evidence (see Fox v Percy (2003) 214 CLR 118), was not satisfied that it was more likely than not that the mother either intentionally failed to comply with order 5(a) or made no reasonable attempt to comply.
The principles governing an appellate court hearing an appeal against an exercise of discretion are well settled. They were stated in House v The King (1936) 55 CLR 499 at pp 504-5 as follows:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
No error of principle or error of fact on the part of the trial judge has been demonstrated. Nor can it be concluded that the trial judge’s conclusion is “unreasonable or plainly unjust”. In this context it must be observed that an appeal lies from orders made, not findings. The relevant order made by the trial judge the subject of this appeal is the order that no sanctions be imposed upon the mother.
It can hardly be concluded that that “result” is “unreasonable or plainly unjust” in circumstances where, even if the father succeeds in having the application reheard he does not propose to seek any sanctions of the mother.
There is no merit in this ground. Even if some relevant error were demonstrated in terms of the trial judge’s findings a significant issue would arise as to the utility of the appeal in circumstances where the father appeals against an order that no sanctions be imposed upon the mother for the purpose of obtaining an order, at the conclusion of a rehearing, in identical terms.
Ground 2 - The Judicial officer demonstrated bias towards the applicant and as such there was a denial of natural justice. Did not allow a fair and even playing field to present the hearing.
It is counter-intuitive to the father’s claim of bias on the part of the trial judge that in the determination of the contravention application the trial judge preferred the father’s evidence to that of the mother on each and every disputed issue of fact, and ultimately found that the mother had contravened paragraph 5(a) of the primary orders.
When reference is had to the father’s summary of argument in support of this ground it is revealed that this complaint is in reality directed to alleged conduct of the trial judge in numerous alleged respects on various occasions in the period prior to the making of the primary orders.
That aside, it is well-settled that a complaint of bias is not legitimately made if raised for the first time on appeal with no such complaint or issue having been raised in the court below (see Vakuata v Kelly at p 572).
In any event the father has not made out any basis for asserting apprehended or actual bias and there is thus no merit in this ground.
Ground 3 – The Judicial officer did not take into account the severity of the orders that had been breached or that his failure to set appropriate sanctions for a proven contravention would result in further breaching and further application to the court.
All that is probably necessary to be observed of this ground, as illuminated by the father’s summary of argument is that the father asserts error on the part of the trial judge in not imposing any sanction of the mother for her contravention of paragraph 5(a) of the primary orders yet the father would not seek any such sanction even if he succeeded in having a rehearing of his application.
As is made plain by the father’s summary of argument in support of this ground, the father purports to advance matters that were not in evidence in the proceedings below, including bare assertions as to the mother’s “habitual breaching of court orders and non-compliance; and this was not the respondent’s first breach, there have been many and there has been two more breaches since the application was made”. As no such evidence was before the trial judge on the contravention application, nor was such evidence before this court, it becomes clear that this ground is supported only by allegations, not evidence.
It was within the trial judge’s discretion to determine that no sanction be imposed. Nothing to which the father permissibly directs attention demonstrates any error in the discretion the trial judge exercised in this respect. There is thus no merit in this ground.
Ground 4 – The Judicial officer introduced issues outside of the application before him and create further confusion in regards to how the consent orders should be applied in future. His understanding of our consent orders was contradictory to the consent agreements made between the parties.
All of the complaints agitated by the father in his summary of argument in support of this ground relate to that part of the hearing below subsequent to the trial judge’s determination of the contravention application.
In the main, those complaints centre upon the question of telephone contact and discussion of that topic in the interpretation of the orders with respect to telephone contact. All of that occurred subsequent to the determination of the contravention application and out of which no orders resulted.
Even if it could be demonstrated that the trial judge was somehow in error in his approach or in his discussion of these issues in that part of the hearing, any such error has nothing to do with the determination of the contravention application or thus this appeal.
There is therefore no merit in this ground.
Conclusion
The parties having expressed during the hearing of the appeal their agreement and consent to variation of order 5 of the primary orders in the terms earlier outlined, such variation order ought be made.
Otherwise the appeal ought be dismissed with no order as to costs.
I certify that the preceding one hundred and forty four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 June 2014.
Associate:
Date: 27 June 2014
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