COLLARD & WALKER
[2016] FamCAFC 9
•4 February 2016
FAMILY COURT OF AUSTRALIA
| COLLARD & WALKER | [2016] FamCAFC 9 |
| FAMILY LAW – APPEAL – CHILDREN – Interim orders – Where the appellant appeals against an interim injunction restraining the behaviour of both parents in relation to the children – Whether the injunction is too wide and unenforceable – Whether the injunction is in the children’s best interest – Where no error established – Appeal dismissed – Appellant to pay the respondent’s costs of and incidental to the appeal. |
| Family Law Act 1975 (Cth) s 37A(9)(10), s 68B and s 117 Family Law Rules 2004 r 18.10 |
| CDJ v VAJ (1998) 197 CLR 172 Cummins v Mackenzie & Anor [1979] 2 NSWLR 803 Goode and Goode (2006) FLC 93-286 Limousin & Limousin (Costs) (2007) 38 FamLR 478 Sampson and Hartnett (No 10) (2007) FLC 93-350 Stredwick and Stredwick (1986) FLC 91-724 Trask & Westlake (Costs) [2015] FamCAFC 214 Y and Z v W [2007] 70 NSWLR 377 |
| APPELLANT: | Mr Collard |
| RESPONDENT: | Ms Walker |
| INDEPENDENT CHILDREN'S LAWYER: | Amanda Cheevers |
| FILE NUMBER: | MLC | 2963 | of | 2014 |
| APPEAL NUMBER: | SOA | 95 | of | 2014 |
| DATE DELIVERED: | 4 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Aldridge JJ |
| HEARING DATE: | 14 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 December 2014 |
| LOWER COURT MNC: | [2014] FamCA 1113 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Levine |
| SOLICITOR FOR THE APPELLANT: | James McConvill & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Fiskin |
| SOLICITOR FOR THE RESPONDENT: | Carew Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Victoria Legal Aid, Broadmeadows |
Orders
That the Appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal in such amount as may be agreed in writing between the parties or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collard & Walker 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 MELBOURNE |
Appeal Number: SOA 95 of 2014
File Number: MLC 2963 of 2014
| Mr Collard |
Appellant
And
| Ms Walker |
Respondent
REASONS FOR JUDGMENT
The father of three children now aged 15, 13 and seven appeals the order made by Thornton J on 11 December 2014 dismissing the father’s application to review orders made by Senior Registrar Fitzgibbon.
The Senior Registrar’s orders, some of which were made by consent, extend over 37 paragraphs and ten typed pages. The father sought to review three of those orders. The first two orders reviewed (Orders 12 and 13(b)) are injunctions directed to the prevention of behaviours by the parties directed to, or involving, the children. The third order reviewed was an order appointing an Independent Children's Lawyer (“ICL”). The father had consented to that order before the Senior Registrar. The challenge in respect of it was abandoned before us.
These reasons inform our conclusion that the father’s appeal has no merit and should be dismissed.
Factual Context And The Orders Reviewed
The uncontroversial background facts are set out in her Honour’s reasons and can be repeated conveniently here:
11.The parties were married [in 2000] and separated on 16 December 2013. There are three school aged children of the marriage. [B] is 14 and is enrolled in Year 8. [C] is 11 and is enrolled in Year 6. [D] is five and commenced Grade Prep this year.
12.The wife is 53 and the husband is 63. The wife is employed three days a week ... and works flexible hours. The father is unemployed and is a [tradesman] by occupation.
13.The father worked in the Northern Territory from late 2009 until approximately September 2011, spending three weeks at a time in the Territory followed by one week in Melbourne. In early 2013 he returned to the Northern Territory on a 12 month contract, returning to Melbourne in December 2013. For the first six months of this contract, the father spent three weeks in the Northern Territory followed by one week in Melbourne. Thereafter, he worked in the Territory for two weeks at a time, returning to Melbourne each third week. While away, the father maintained regular contact with the children.
14.The mother was throughout this period the children’s primary caregiver.
15.Since separation the husband has purchased a home across the road from the children’s primary school. The mother resides with the children in the former matrimonial home.
The challenged interim orders occur within other interim orders which provide, in broad terms, for the children to spend nine nights per fortnight with their mother and five nights per fortnight with their father as well as shared blocks of time during school holidays and time on special occasions.
The father’s application for review sought to discharge the following interim orders made by the Senior Registrar:
12.That neither party interfere in any way with the periods of time the children or any of them live with or spend time with the other parent pursuant to these orders, unless:
(a) by prior written agreement; or
(b)order of the Court, and including but not limited to the following:
(i)collecting or taking them, or any of them, to walk or drive them to and/or from school; or
(ii)attending the child’s school to undertake class work in the children’s respective classes/rooms; or
(iii)attending during school hours, or when the children are in attendance to undertake other voluntary work including any maintenance/building works, save for parent teacher interviews, concerts and occasions to which any parent is invited by the school; or
(iv)directly making arrangements with the children or any of them to spend time with them when living with the other parent, or encouraging them to do so; or
(v)attending and/or participating in the children’s extra-curricular activities or after hours commitments; or
(vi)enrolling them in any new or different extra-curricular activities.
13. That each of the parties, their servants and agents be hereby restrained by injunction from:
…
(b)questioning the children about the other party, his/her behaviour and his/her activities, social or otherwise and about what the children do on a day to day basis when they are in the other party’s care…
The dismissal of the father’s application for review leaves in place those injunctions. Her Honour’s conclusion to that effect devolves from findings made by her Honour to the effect that the father had not accepted that the relationship between the parties was at an end and that the parental and co-parenting relationship was attended by conflict and dysfunction. The mother contended that the father’s inability to accept the separation had manifested itself in a number of instances of behaviour by the father that was distressing to the children and which interfered with her care of them during their time with her.
Her Honour found, for example, that “[a]t this stage of the separation, face to face contact between the parents presents an opportunity for disagreement and tension between them to be witnessed by the children. This would not promote their welfare”,[1] and that “…the father’s conduct since separation demonstrates that he has had difficulty accepting that the marriage is at an end”.[2]
[1] Reasons [67].
[2] Reasons [58].
The Grounds of Appeal
Amended grounds of appeal were filed on the same day as the appellant father’s written summary of argument. Despite being filed on the same day, the grounds as numbered in the amended grounds of appeal do not correlate with the enumerated grounds addressed in the father’s written submissions. Throughout the appeal, both parties referred to grounds as numbered in the amended grounds of appeal document and the father’s written summary of argument. We propose to refer to the grounds as enumerated in the amended grounds of appeal.
In circumstances where some grounds of appeal were abandoned before us, some were not the subject of argument and where yet others cannot, in the absence of, at least, further particulars, meet properly the description of “grounds of appeal” at all, we think it instructive to quote in full the father’s amended grounds of appeal as pleaded.
As originally filed there were 24 grounds. The amended grounds of appeal are as follows:[3]
[3] Striking out and underlining in original.
1. The Trial Judge failed to provide the husband with natural justice.
2.The Trial Judge demonstrated a reasonable apprehension of bias against the husband.
3.The Trial Judge failed to properly apply s 140 of the Evidence Act
erred in relying upon evidence that had no probative value to justify making a restraining order.Particulars
The Trial Judge relied upon inexact proofs to make her findings.
The Trial Judge failed to consider the matters specified in s 140(2) of the Evidence Act in making her decision.
The Trial Judge erroneously take into account the opinion of the wife.
4.The Trial Judge failed to take into account in making the restraining orders the wishes of the children.
5.
The Trial Judge failed to make a determination on the probative value of the evidence in making her decision.6.
The Trial Judge erred in holding that s 140 of the Evidence Act applied to the onus of proof that was required to prove that the restraints were necessary.7.The Trial Judge erred in rejecting the submissions of the husband that he would respect the time that the children would spend with the wife in the absence of evidence to the contrary.
8.The Trial Judge erred in drawing an inference, in the absence of evidence as to the husband’s intentions, that the orders sought in the husband’s appeal demonstrated a lack of insight and/or an attempt to circumvent the consent orders as to the time that the children would spend with the wife.
9.The Trial Judge erred in failing to consider whether the husband would be likely to continue to act in a manner that required the making of a restraining order.
10.The Trial Judge erred in failing to make a decision as to whether the balance of convenience favoured making a restraining order.
11.The Trial Judge failed to make the restraining order on the basis that it was necessary for the interests of the interests and welfare of the children.
The Trial Judge erroneously considered that the restraining orders were in the usual terms in that they prohibited any party from intruding upon the time that the other spent with the children, thereby reversing the onus of proof.12.The Trial Judge erroneously distinguished the principles in the cases relied upon by the husband on the basis that the cases were factually different.
13.The Trial Judge erred in taking into account that a restraining order could be made for the purpose of providing guidance and certainty for the parties.
14.The Trial Judge erred in taking into account that a restraining order could be made on the basis of an inference that the children would be exposed to the disharmony between the parties, or will be pressured to spend more time by the other, or that the parties should avoid face to face contact between them.
15.The Trial Judge erred in deciding that an inference should be drawn against the husband in his decision to appeal an order appointing an Independent Children's Lawyer.
16.The Trial Judge erred in taking into account that the restraining orders were interim.
17.The Trial Judge erred in failing to take into account that there would be a benefit to the children in having the husband attend extra curricular activities/school activities.
18.The Trial Judge erred in failing to take into account that the husband would not be able to fully participate in the extracurricular activities with the children, as they generally fell on days on which he did not spend time with the children.
19.The Trial Judge erred in failing to draw an inference that the evidence of the school would not assist the wife, as she decided not to adduce evidence from the school.
20.The Trial Judge erred in holding that the orders were flexible and could be varied by agreement.
The Trial Judge erred in holding that the husband’s wish to be involved in the extra curricular activities of the children and their school life demonstrates the need for the restraining orders, even though the onus of proof was upon her.21.The Trial Judge erred in failing to make a decision as to whether the restraining orders were too wide and/or unenforceable and/or should precisely define the conduct that was sought to be restrained.
22.The Trial Judge erred in holding that there was an (intractable) conflict between the parties.
23.The Trial Judge failed to properly assess the criteria in relation to the appointment of an independent children's lawyer.
24.The Trial Judge took an inordinate amount of time to deliver judgment.
25.The Trial Judge failed to provide proper reasons for her decision.
As can be seen, in respect of many of the grounds it is not possible to discern what appealable error is asserted. For example, “the trial judge … taking into account that the restraining orders were interim” or that “the trial judge took an inordinate amount of time to deliver judgment” do not reveal any appealable error.
These issues were raised with counsel for the appellant at the hearing of the appeal. In addition, we raised with counsel the fact that some, at least, of the grounds did not appear to have been addressed substantively in written argument. For example, the last ground just referred to was supported by a written argument that contended “[t]he trial judge took approximately seven weeks to deliver judgment and she has made numerous errors, that can be taken into account in to determining that she did not properly assess the facts/law”.[4] No oral argument was addressed to that ground.
[4] Appellant’s written summary of argument filed 30 April 2015, [29].
When these issues were raised with counsel for the appellant father, he abandoned grounds 2, 12, 23 and 24.
Ground 2, which was abandoned at the conclusion of the hearing and not before, asserted bias on the part of the trial judge. The written summary of argument in respect of this ground rests on an assertion that the trial judge found “mala fides” on the part of the father when “…the finding was not sought by the wife via her counsel…” and it was “inappropriate to make” such a finding “in an interim hearing”. The argument goes on to conclude that:
The reasonable apprehension of bias is reinforced by the Trial Judge failing to consider that there were any positive aspects to the husband’s proposals that included that it would be beneficial for the husband to attend the children’s school and that his presence would be monitored by the school.[5]
[5] Ibid, [4].
As expressed, the ground and its accompanying written argument appear to assert actual bias. No such assertion, or any such suggestion, was made during the hearing. No application was made to her Honour that she should recuse herself for that (or indeed any other) reason.
An allegation of bias against a judge, and in particular an allegation of actual bias, strikes at the heart of the integrity of the judicial process. Legal practitioners should undoubtedly make such an allegation fearlessly where it is well-founded. Just as undoubtedly, legal practitioners should not make any such allegation unless a foundation for it exists. Here, no written or oral argument suggests that there was, or is, the slightest foundation for any allegation of bias on the part of her Honour. Counsel’s abandonment of it without demur only upon being asked by this Court whether the ground was pursued is conduct deserving of significant condemnation. The making of the allegation by those who pleaded it is deserving of equal condemnation.
The foundation for a ground that the father was “denied natural justice” (ground 1) is, it seems, an assertion that the trial judge found “mala fides against the husband” and that her Honour suggested that the father’s proposals were “a means to circumvent the unchallenged interim orders”. The ground misrepresents what her Honour said. There was no finding of “mala fides”. The finding made was that the children (particularly the youngest child)[6] felt under extreme pressure and that “the nature of the father’s interim proposals would intrude on the mother’s time with the children and would be contrary to the interim orders which have been made and not been challenged”. That finding was plainly open to her Honour.
[6] See, for example, reasons [61], [62].
No argument was advanced which was persuasive of the contention that her Honour’s reasons were inadequate to explain her conclusions (ground 25). In our view, her Honour’s reasons were more than adequate.
Ground 20 which alleges that “[t]he trial judge erred in holding that the orders were flexible and could be varied by agreement”, to the extent that it alleges appealable error at all, is specious. The point her Honour makes is simple and correct; these orders, like all orders, can be varied by agreement between the parties. Her Honour said nothing more and nothing less.
Stripped to its arguable bases, the father’s challenge has two principal foci. The first turns on the evidence before her Honour and the father’s contention before us that it was incapable of sustaining her Honour’s findings. Those challenges are expressed in a number of different ways, including in some ways that do not, as far as we can see, admit of appealable error – see for example, Ground 16. It is convenient to deal with all of them together under the heading “evidentiary challenges”. They encompass grounds 3, 7, 8, 9, 14, 15, 16, 19 and 22. Grounds 4, 17 and 18 are discretionary challenges (failing to take account of alleged relevant considerations) and they, too, can be conveniently dealt with under this heading.
The second, and we apprehend primary, challenge is to the nature and terms of the impugned injunction. This challenge is embraced by grounds 10, 11, 13 and 21.
The “Evidentiary Challenges”
The challenged findings, including in particular an acceptance of the mother’s evidence that “there was an ongoing conflict between [the parties] on almost every issue especially parenting issues” is asserted to have been based on “little more than speculation or inexact proofs”.[7]
[7] Appellant’s written summary of argument [6].
The findings which her Honour made and the evidence upon which they were based cannot be divorced from the context in which the evidence was led and the findings made. That context has two relevant crucial components. First is the nature of the proceedings with which her Honour was concerned and the second is the parameters of the dispute within those proceedings.
Proceedings for a review of the decision of a Registrar are conducted as a hearing de novo.[8] Her Honour was plainly alive to the nature of the proceedings.[9] As her Honour correctly perceived, she was required to hear the review “as an original hearing” and in doing so “…the court rehears the whole matter and does not simply review the decision of the original court”.[10] Her Honour was required to proceed as if she was “exercising that power afresh”.[11] Once her Honour became seized of the review, what the Senior Registrar had done became “…irrelevant, except in so far as it is necessary to know that he has [made orders], that being the justification for the court’s exercise of jurisdiction”.[12]
[8] Family Law Act 1975 (Cth) (“the Act”), s 37A(9), (10); Family Law Rules 2004 (“the Rules”), r 18.10.
[9] Reasons [4]-[9].
[10] The Rules, r 18.10.
[11] Stredwick and Stredwick (1986) FLC 91-724, per Nygh J.
[12] Cummins v Mackenzie & Anor [1979] 2 NSWLR 803, at 809.
The only issues joined between the parties before her Honour pertained to aspects of the interim injunction sought by the mother pending a trial of parenting issues more broadly and the father’s contention denying the need for aspects of the interim injunction.
What was required of her Honour was to make an interim decision about those issues but within an existing context of arrangements that had been agreed or were not the subject of challenge. That existing context included an agreed need for other injunctive relief. Secondly, such issues as were joined between the parties were to be determined by her Honour within “an abridged process where the scope of the enquiry is ‘significantly curtailed’”, with her Honour paying particular regard to, among other matters, the “…less contentious matters, such as the agreed facts and issues not in dispute…”.[13]
[13] Goode and Goode (2006) FLC 93-286, at [68].
In this case, it was those agreed issues and less contentious matters that informed and gave shape to the findings which her Honour made. Pending trial, the children were to live with the mother for nine nights each fortnight and the father five nights and otherwise share holiday and special occasion time. Each of the parents could (and were not at all restricted from) fully participate in the lives and activities of the children during the time that the children were with them. In that respect her Honour found specifically that:
60.The father can assist with the children’s homework, participate in their extracurricular activities and engage in reading with the youngest child during the five nights when he spends time with the children. He also has the opportunity to speak with the children by telephone and spend time with them for half the school holidays. The father has the opportunity to attend school during the school days that he spends with the children and at other times when parents are invited for special occasions.
The nature of the parties’ post-separation relationship was such that they had agreed to injunctions which restrained each from:
·“abusing, insulting, belittling, rebuking, or otherwise denigrating the other … in the presence or hearing of the children”;
·“discussing the parties’ separation and/or these proceedings or the contents of any documents filed … in the presence or hearing of the children”;
·“leaving them [presumably the documents] where they may be seen, located, or accessed whether in printed / hard copy or on any computers or other device…”.[14]
[14] Respectively, orders 13(a), (c) and (d).
In addition, the nature of the parties’ post-separation relationship was such that they had agreed additionally to an order that changeovers occur at school rather than their respective homes.
Her Honour had evidence from a family report writer. As her Honour properly observed, that evidence was untested before her but it was, nevertheless, independent of the parties. The report writer opined that the parties’ “…relationship is strained and communication occurs predominantly via SMS messages or Emails”.[15] Her Honour found specifically:
59.According to the Family Report writer, the children are aware of the disharmony between the parents concerning the spend time arrangements. It follows that the children will be pressured by unnecessary discussion about changes to the arrangements. The children do not need to be exposed to that disharmony by the parents having more frequent engagement with each other during the time that the children spend with the mother, which the father’s proposals would inevitably entail.
[15] Affidavit of Mr I filed 23 July 2014, Report at paragraph 55.
Her Honour also referred specifically to a matter plainly considered important by the family report writer:
39.Counsel for the mother also relied on paragraph 30 of the Family Report … wherein it was indicated that the father will “play by the rules provided he gets what he wants”. The father seeks ultimately an equal shared care arrangement for the children, contrary to the recommendation of … the Family Report writer.
Crucially, when addressing specifically arguments advanced on behalf of the father before her that the injunctions were too broad and imprecise, her Honour said:
69.The term “interfere in any way”, complained of by the husband as being very wide and imprecise and difficult to enforce is appropriate in the circumstances, particularly having regard to the comment made by the father to the Family Report writer that he would “refrain from intruding into the mother’s time with the children only if he succeeds with his application.” Although the Family Report writer’s evidence is as yet untested, this sense that the father will obey the rules if he likes the rules was reinforced by his own counsel, who explicitly submitted that the father would be more willing to accept boundaries if the arrangement was 7/7 shared care, rather than 9/5 as is currently the case. The order also specifically lists the behaviour which constitutes interference.
As against those matters, the parties presented evidence which, of its nature, exemplified Kirby J’s adage that “[b]est interests are values, not facts”.[16] His Honour’s comment that “[t]he evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges”[17] is, with respect, even more true in interim proceedings and exemplified starkly here where the evidence consisted primarily of competing perceptions and values by each of the parties rendered acute in the post-separation period and exacerbated by one party’s inability to accept the end of the relationship. Within that milieu, it is perfectly understandable that considerable weight was placed by her Honour upon the evidence of the family report writer.
[16] CDJ v VAJ (1998) 197 CLR 172, per Kirby J at [152].
[17] Ibid.
Contrary to that which is contended on behalf of the father, her Honour’s ultimate finding was not grounded in a finding of “mala fides” or adverse motives attributed to the father; rather it was grounded in the best interests of these children being served pending trial in their substantial and significant time with each of the parents being enjoyed exclusively with that parent during that time. That central premise is underscored by the fact – not at all mentioned by the father – that all of the impugned injunctions placed a restraint on both parties.
There was, in our view, ample evidence set against the proper context of the issues joined between the parties for her Honour to reach the conclusion that an injunction of the type ordered was required in the children’s best interests.
In a similar vein, once the true ambit and context of the issues confronting her Honour are appreciated, we can see no merit in the challenges embraced by grounds 4, 17 and 18 to the effect that her Honour did not properly take into account relevant considerations. Her Honour did take the relevant matters into account, but determined that the children’s best interests pending trial were met by the father’s involvement in their activities during the time they were with him (and equally with the mother during their time with her).
Grounds 3, 4, 7, 8, 9, 14, 15, 16, 17, 18, 19 and 22 fail.
The Challenge to the Injunctions
In broad terms, the father contends that the impugned injunctions are too wide and/or are unenforceable. By way of corollary it is said that the injunction should define specifically the conduct that is sought to be restrained and that the impugned injunctions do not. It will be appreciated that this argument depends in part on the fact that paragraph 12(b) of the orders provides that the injunction includes “but [is] not limited to” the enumerated behaviours within it.
Secondly, and allied to that argument, it is contended that the injunction is contrary to the best interests of the children. It is contended that the injunction restrains the father from engaging in activities with the children despite the fact that the children would benefit from those activities. It is said that the present orders are inflexible (contrary to her Honour’s finding) and too restrictive of the father’s desire to spend more time with the children. In effect it is argued that the injunctions are restrictive of the father having a meaningful relationship with the children in circumstances where the evidence is plainly to the effect that they have a close relationship with him and enjoy spending their time with him.
The second part of the argument just described is answered by our conclusion earlier outlined that it was reasonably open to her Honour to find on the evidence before her that the best interests of the children pending trial were best served by orders which gave exclusivity to the time that the children spent with each of their parents. It may be that the orders are restrictive of the father’s desire to spend more time with the children or engage in activities at further times of his choosing, but it has been determined that, pending trial, that is not in the children’s best interests. That conclusion was, in our view, well open to her Honour on the evidence before her and made more so by the context of the interim proceedings in which it was made.
The Breadth and Terms of the Interim Injunction
It can be accepted that as a general principle injunctions should not be cast in terms wider than what is necessary to address the conduct to which they are directed. Equally, as a general principle, injunctions should not be made which, by reason of the imprecision of their terms, are effectively unenforceable. The grant of an interim injunction is discretionary,[18] and as the New South Wales Court of Appeal pointed out in a different context in Y and Z v W:[19]
…a discretionary consideration is “what is to happen if there is a breach, and committal proceedings or punitive proceedings are sought on behalf of the plaintiff” … The facts of a particular case may be such that justice may require an order to be made in terms that may, in some circumstances, give rise to uncertainty. It may be that, if circumstances in fact give rise to uncertainty, an order for contempt of court will not be made for the alleged breach of the order. On the other hand, if the particular circumstances are such that it is certain beyond reasonable doubt that the order has been breached, there is no reason why the defendant should not be found guilty of contempt.[20]
[18] s 68B.
[19] [2007] 70 NSWLR 377.
[20] Ibid, at [73] per Ipp JA, (citations omitted).
Where “…the parties have surrendered the resolution of dispute about parental arrangements to the court…”[21] because of dysfunction and conflict in their co-parenting arrangements, the very nature of many injunctions beg of the need to embrace a multiplicity of issues and behaviours.
[21] Sampson and Hartnett (No 10) (2007) FLC 93-350, at [46].
Here, there is no doubt that the terms of the relevant injunctions are wide. They are wide because in their intended application to both parties they are intended to reflect the ultimate finding earlier referred to that the parties’ respective time with the children should be exclusive of the other party. The intended effect of the order determined to be in the children’s best interests is directed to a wide variety of past and prospective circumstances. In Y and Z v W, Ipp JA said:
75.In Bankstown City Council v Alamdo Holdings Pty Ltd (2004) 135 LGERA 312, Spigelman CJ (with whom Giles JA and I agreed) … (at 331 [99]) quoted the following extract from R P Meagher, J D Heydon and M J Leeming, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies, 4th ed (2002) Sydney, Butterworths, at 21–505:
“… commonsense and practice alike demonstrate that it is impossible to specify in the language of an injunction every detail of the obligations which it imposes on the person to whom it is addressed. In some cases, the practicalities of the facts may make it impossible to frame an injunction in anything but the most general terms; and, in any event, the danger of an order couched in overtly particular terms is that it may leave the defendant at liberty to indulge in reprehensible conduct which is almost but not quite enjoined, without committing any contempt. Thus, the standard form of injunction in a nuisance case consists of an order forbidding the defendant from doing the acts complained of...”
76. The Chief Justice observed (at 331 [100]):
“Part of this passage was quoted with approval by Callinan J in Maggbury Pty Ltd v Hafele Aust Pty Ltd (2001) 210 CLR 181 at 220, where his Honour added: ‘Excessively narrow formalism in framing the injunction may wreak its own injustice.’”
And concluded (at 332 [106]–[107]):
“An injunction in the form ordered in this case does not, in my opinion, infringe the principle that an injunction ought to make clear what the defendant is required to do or not to do…”
Here, we are satisfied that her Honour did not err in identifying that the facts of this case were such “that justice [required] an order to be made in terms that may, in some circumstances, give rise to uncertainty” and did not “infringe the principle that an injunction ought to make clear what [the father] is required to do or not to do”.
We are not persuaded of any error made by her Honour referenced to the breadth or terms of the injunctions. Grounds 10, 11, 13 and 21 fail.
Conclusion
The appeal should be dismissed.
Costs
The mother seeks an order that the father pay her costs of the appeal.
The primary circumstance relied upon as justifying an order for costs is that the father has been “wholly unsuccessful” in his appeal.[22] “While costs do not ‘follow the event’ any more on an appeal than they do in any other proceedings (s 117(1)), it is often said that a party being wholly unsuccessful in an appeal, which by definition seeks to deny the other party the ‘fruits of their judgment’, can be of great significance”.[23] We consider it of great significance here. We also consider that this appeal from a review of interim orders enjoyed little prospects of success from its outset.
[22] The Act, s 117(2A)(e).
[23]Trask & Westlake (Costs) [2015] FamCAFC 214, at [4]. See also Limousin & Limousin (Costs) (2007) 38 FamLR 478 at [60].
There will be an order that the father pay the mother’s costs, of and incidental to the appeal as agreed or, in the absence of agreement, as assessed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy and Aldridge JJ) delivered on 4 February 2016.
Associate:
Date: 4 February 2016
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