Darley & Darley (No. 4)
[2021] FamCAFC 54
•23 April 2021
FAMILY COURT OF AUSTRALIA
Darley & Darley (No. 4) [2021] FamCAFC 54
Appeal from: Darley & Darley (No. 2) [2018] FamCA 1086
Darley & Darley (No. 2) [2019] FamCA 206
Darley & Darley (No. 4) [2019] FamCA 595Appeal number(s): NOA 9 of 2019
NOA 39 of 2019
NOA 83 of 2019File number(s): BRC 2317 of 2013 Judgment of: AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ Date of judgment: 23 April 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal against orders providing for the distribution of net sale proceeds of the former family home and retention of the parties’ superannuation entitlements – Where the primary judge erred in finding that an existing interim order would prevail beyond final orders – Appeal allowed in part – Limited re-exercise of discretion – Appeal otherwise dismissed.
FAMILY LAW – APPEAL – PARENTING – Appeal against orders providing for the children to live with the mother and spend time with the father – Bias – No specificity of actual or apprehended bias – Procedural Fairness – No error demonstrated – Appeal dismissed.
FAMILY LAW – APPEAL – CONTRAVENTION –Where at trial all but one contravention was dismissed with no sanction imposed – Where the mother contended the primary judge was “unprofessional”, denied her procedural fairness, failed to take material considerations into account and made findings not available on the evidence – Where the mother did not particularise her grounds of appeal – No error demonstrated – Appeal dismissed.
FAMILY LAW – APPEAL – LEAVE TO APPEAL – VEXATIOUS LITIGANT – Where the mother was declared vexatious pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) – Leave to institute proceedings – Where the mother’s intended proceedings are without reasonable grounds – Application dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the mother filed a multitude of applications relating to all three appeals – Where the applications did not distinguish between each appeal – Controversial evidence – Evidence incapable of carrying probative value – Where the mother did not particularise what parts of the evidence were relevant – Applications dismissed – No orders as to costs.
Legislation: Evidence Act 1995 (Cth) ss 69, 91, 138
Family Law Act 1975 (Cth) Pts VII, VIII, XIB, XIIIA, Div 13A, ss 4(1), 4AB, 11B(c), 60B(1), 60CC, 60CG(1), 65DAC, 69ZV, 69ZX(3), 75(2), 93A(2), 102Q(1), 102QB, 102QE, 102QF, 102QG, 117
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Regulations 1984 (Cth) reg 7
Family Law Rules 2004 (Cth) r 22.09
Cases cited: A v A (1998) FLC 92-800; [1998] FamCA 25
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bass and Bass (2008) FLC 93-366; [2008] FamCAFC 67
Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22
Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Darley & Darley (No. 2) [2017] FamCA 791
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fitzmaurice & Woolridge (2020) FLC 93-951; [2020] FamCAFC 64
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Nagel v Clay (2020) 60 Fam LR 550; [2020] FamCA 326
Re Andrew (1996) FLC 92-692; [1996] FamCA 43
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Re SCVG (2020) 61 Fam LR 218; [2020] FamCAFC 147
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76
Sedgley and Sedgley (1995) FLC 92-623; [1995] FamCA 154
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019)
Division: Appeal Division Number of paragraphs: 175 Date of hearing: 3 March 2021 Place: Brisbane, delivered in Newcastle The Appellant: Litigant in person The Respondent: No appearance Counsel for the Independent Children's Lawyer: Dr Sayers Solicitor for the Independent Children's Lawyer: Norman & Kingston ORDERS
NOA 9 of 2019
NOA 39 of 2019
NOA 83 of 2019
BRC 2317 of 2013APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS DARLEY
Appellant
AND: MR DARLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
DATE OF ORDER:
23 APRIL 2021
THE COURT ORDERS THAT:
1.In relation to Appeal No. NOA 9 of 2019, leave is granted to the appellant to rely upon the unfiled Amended Notice of Appeal dated 22 February 2021.
2.In relation to proposed Appeal No. NOA 83 of 2019, leave is granted to the appellant to rely upon the unfiled Amended Notice of Appeal dated 19 February 2021.
3.Otherwise, the outstanding applications contained within the Applications in an Appeal filed on 2 August 2019, 11 November 2019, 2 December 2019, 12 December 2019, 21 May 2020, 25 September 2020, and 22 February 2021 are dismissed.
4.Appeal No. NOA 9 of 2019 is allowed in part.
5.The respondent shall forthwith cause to be delivered to the appellant, in an undamaged and working condition:
a)the original DVD recording of the christening celebration for the eldest child;
b)the original DVD recording of the wedding celebration of the parties; and
c)the original CD storing the photographs of the said christening and wedding.
6.Appeal No. NOA 39 of 2019 is dismissed.
7.Leave to appeal in Appeal No. NOA 83 of 2019 is refused.
8.No order as to costs
.
Note: The form of the order is subject to the entry in the Court’s records.Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Darley & Darley (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ:
These proceedings concern the disposition of three separate appeals from orders made between the appellant mother and the respondent father by two judges of the Family Court of Australia in the period between December 2018 and August 2019.
On 18 December 2018, one judge made final orders resolving the parties’ disputes over their children and the division of their property interests, pursuant to Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) respectively. The first appeal lies from many, but not all, of those orders (Appeal No. NOA 9 of 2019). Save for a very narrow error in respect of the property settlement order, which is rectified by an additional order being made in the re-exercise of discretion, this appeal should be dismissed.
On 5 April 2019, another judge determined the mother’s applications to impose sanctions upon the father for alleged contraventions of multiple past orders made in December 2014, May 2017, and December 2018. All but one count in the contravention applications were dismissed and no sanction was imposed upon the father for the sole count established against him. Otherwise, relevantly, the mother was ordered to pay the costs of the Independent Children’s Lawyer (“the ICL”) and the matter was re-listed a few months ahead for the mother to show cause why an order should not be made against her under s 102QB of the Act. The second appeal lies from those particular orders (Appeal No. NOA 39 of 2019). This appeal should be dismissed.
On 23 August 2019, the second judge made an order against the mother pursuant to s 102QB(2) of the Act, prohibiting her from bringing further proceedings under the Act without first obtaining leave to do so. The third appeal lies from that order (Appeal No. NOA 83 of 2019), but only with the grant of leave, which leave should be refused.
The father filed Submitting Notices in the first and second appeals and did not appear at the appeal hearing. The ICL actively opposed the appeal from the parenting orders in the first appeal, but did not otherwise seek to be heard.
APPLICATIONS IN THE APPEAL
The mother filed a multitude of interlocutory applications between August 2019 and September 2020, which she contended related to at least two, if not all three, appeals. Many aspects of the applications concerning the appeals’ procedural conduct have already been determined by interlocutory orders made by Kent J and the regional appeal registrar, but the material parts of the applications yet to be determined concern the mother’s desire to adduce further evidence in the appeals. The applications can be determined at the outset as they do not purport to distinguish between which of the proposed further evidence applies to which appeal and there is considerable overlap between the grounds in the three appeals and the submissions made in support of them.
Just days before the appeal hearing, the mother filed her seventh Application in an Appeal seeking an array of different procedural orders. The Application was listed for hearing in conjunction with the appeals. In so far as the application concerned leave to rely upon unfiled Amended Notices of Appeal in the first and proposed third appeal, such leave was granted with the ICL’s consent, despite the time for amendment under r 22.09 of the Family Law Rules 2004 (Cth) having long since passed. The application for leave to file submissions in reply to those filed by the ICL in the first appeal is unnecessary, since the mother was able to reply orally at the hearing. The application for leave to appeal in the proposed third appeal is addressed later in these reasons. The portion of this Application in an Appeal comprising an application to adduce further evidence is addressed, notwithstanding its lateness, in conjunction with the other outstanding applications of the same type.
Dealing then with the multiple interlocutory applications seeking leave to adduce further evidence in the appeals, the mother identified the following documents as the further evidence:
(a)her affidavit filed on 4 June 2019, which was filed in support of an application made to the second judge to stay the appealed orders in the second appeal and to vacate the forthcoming hearing before the second judge, which produced the orders which are the subject of the proposed third appeal;
(b)her “Summary of Argument/Submissions” dated 9 June 2019, upon which she relied before the second judge in relation to the same first-instance application, heard on 10 June 2019;
(c)her affidavit filed on 2 August 2019 in support of her first Application in an Appeal;
(d)her submissions dated 17 November 2019, which were apparently prepared in support of her first two Applications in an Appeal;
(e)material referred to in her affidavit comprising some 329 pages filed on 22 February 2021, which included a selection of the father’s medical records produced in response to subpoenas, the mother’s commentary about the father and his past misconduct, a plethora of past text messages exchanged between the parties, the mother’s complaints of the ICL’s incompetence, transcripts of past hearings, copies of documents formerly filed in the proceedings, and references to audio recordings.
The mother’s affidavit filed on 4 June 2019 contains only small fractions of factual evidence, as distinct from bald assertions and conclusions. Those parts of the affidavit which genuinely amount to factual evidence are incapable of carrying any probative value in the appeals, as the following summary of its contents reveals.
The affidavit simply comprises: the mother’s proposed adoption and incorporation of many other applications and affidavits she and the father filed in the proceedings between January 2015 and March 2019; her recitation and purported reliance upon certain statutory provisions of the Act and the Evidence Act 1995 (Cth) (“the Evidence Act”); an assertion the children made representations (without identifying what they were) to medical professionals, which were said to be relevant to their welfare and should be admitted into evidence; a reference to one of the appealed orders made in December 2018 giving the parties liberty to apply on short notice to enforce that suite of substantive orders; her version of an argument between the parties about the provision of the children’s passports, which supposedly proved the father’s non-compliance with an existing order; her complaint the second judge erred in making the orders which are challenged in the second appeal; her complaint about the circumstances which necessitated another order being made by the registrar in September 2017; her dissatisfaction with a costs order made against her; her view about the reasonable necessity for the stay of the appealed orders in the second appeal; and her contention that she did not act vexatiously.
The mother filed the affidavit after the first two sets of appealed orders were made, respectively in December 2018 and April 2019. The contents of the affidavit are largely, if not exclusively, a repetition of the mother’s earlier evidence and arguments in the substantive proceedings, which began in 2013, and so the admission of such material in the appeals would not now likely produce different results in either of the first two appeals (CDJ v VAJ (1998) 197 CLR 172 at [109], [111], [140]–[151] and [169]).
The contents of the affidavit are seemingly irrelevant to the proposed third appeal, which concerns only the narrow issue of whether the injunction made against the mother under s 102QB(2) of the Act was made in error. No portion of the subject affidavit addressed that issue, save for her bare assertion she did not act vexatiously, but that adds nothing to the proposed third appeal because it is merely repetition of her case at that time.
The mother’s written submissions dated 9 June 2019, as their title suggests, are merely submissions, not evidence. There can be no proper basis for their admission as further evidence in the appeal pursuant to s 93A(2) of the Act.
The same observation may be made in respect of the mother’s written submissions dated 17 November 2019.
As for the mother’s affidavit filed on 2 August 2019, it deals with several procedural issues which have already been determined, including her applications for the Full Court to provide transcript for the appeals and the grant of permission for her to issue subpoenas requiring documents to be produced in the appeals. In so far as the affidavit concerns proposed further evidence in the appeals, it identified:
(a)some emails sent between the parties in January 2019, which it is said would prove the father’s breach of an order made in December 2018 requiring the parties’ cooperation over the acquisition and exchange of the children’s passports, prompting her to file a contravention application;
(b)the father’s affidavit filed on 19 January 2015, which it is said reveals his financial circumstances and proves his failure to properly maintain the children in breach of s 60B(1)(d) and s 60CC(3)(ca) of the Act;
(c)her affidavit filed on 4 June 2019 and her written submissions dated 9 June 2019 (both of which are already addressed above);
(d)various unidentified newspaper articles referring to “the findings of the ALRC Report by Justice Derrington”, being an intended reference to the Australian Law Reform Commission (“ALRC”) report “Family Law for the Future: An Inquiry into the Family Law System” delivered to the Commonwealth Government in early 2019 (Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, April 2019)); and
(e)some academic works described by the mother as “research articles and Section 7 The Batterer as Parent 2nd Ed Addressing the Impact of Domestic Violence on Family Dynamics by Bancroft, Silverman and Ritchie” (as per the original).
The emails between the parties in January 2019 did not exist at the time of the hearing which resulted in the appealed parenting orders made in December 2018, so they could not have been used in evidence then. Nonetheless, it is almost inconceivable that the parties’ subsequent dispute over the children’s passports could influence the first appeal from the parenting orders, since the factual dispute over the passports in early 2019 was the subject of the contravention hearing in April 2019 (Count 10) determined in the father’s favour. Those dismissal orders are the subject of the second appeal. The second judge found the alleged breach of the December 2018 orders by the father was accidental. Emails were adduced in evidence at that time, either as annexures to the mother’s affidavit in support of the contravention application or as separate exhibits, and were referred to by the second judge in the reasons for judgment given for the dismissal of Count 10. The emails which the mother now seeks to adduce in evidence apparently contain the same text, but are marked with the date and time of their despatch, whereas those details were omitted from the exhibits in evidence at first instance. The mother offered no reasonable explanation for why she did not tender the full copies of the emails then. They were in her possession. The appeal is not the time to repair such a lacuna in the evidence (CDJ v VAJ at [55], [114], [116] and [186.9]).
The father’s affidavit filed in January 2015 could have been adduced in evidence before the first judge during the trial which resulted in the parenting orders made in December 2018, which orders are the subject of the first appeal, but it was not relied upon by either party. Even so, the mother was still at liberty to cross-examine the father upon its contents during the hearing, which progressed over many days between October 2017 and May 2018. She did not apparently do so. Again, the gap which the mother now perceives in the evidence cannot be legitimately filled at the time of the appeal.
The ALRC report and the academic works upon which the mother now wishes to rely presumably only relate to the parenting orders in the first appeal. The documents could not conceivably relate to the second or proposed third appeal. Similarly, those documents could have been adduced in evidence at the trial before the first judge and should not be admitted in evidence now. Had they been tendered then, the father might have sought to conduct his case in a different way, such as by: insisting on the right to cross-examine the authors of the academic works relied upon by the mother; asking the two Family Consultants for their views on the reliability of the academic works; or tendering into evidence other academic works of his choice to counter them. Section 93A(2) of the Act cannot be used in a way which tends to obliterate the distinction between original and appellate jurisdiction (CDJ v VAJ at [111]).
The affidavit filed by the mother on 22 February 2021 contained some of the same material already canvassed above, though some other parts deserve separate mention.
The affidavit sets out incidents which the mother says show the father contravening a protection order made in May 2018 and what purports to be a transcript of an apparently covertly recorded conversation between the mother and a police officer about text messages on her mobile phone followed by submissions as to why that recording should be admitted as evidence with reference to s 138 of the Evidence Act and Bunning v Cross (1978) 141 CLR 54.
As to the pages of transcript from earlier proceedings on which the mother sought to rely to demonstrate that the father breached orders, it was conceded these documents were not adduced at the trial, even though then available.
As to the father’s medical records, it was said that these documents were relevant because they demonstrate the father has been diagnosed with a mental illness and prescribed medication and, further, that he had lied in his evidence. When this was explored with the mother during the appeal hearing she said the documents would enable the Full Court to find the children are at risk in the father’s care. The selected extracts from the father’s medical records were accompanied by her editorial comments about the accuracy of what is reported in the notes and her conclusions based on the medical records.
It is clear the issues sought to be raised were controversial, the father has had no opportunity to address the point or call evidence to refute the mother’s contention, and no satisfactory explanation was provided for why the evidence, which was available at the time of trial, was not then used, which collectively speaks strongly against the further evidence being admitted in the appeals (CDJ v VAJ at [55] and [114]).
The Applications in the Appeal should all be dismissed.
THE PROPERTY APPEAL
Relevantly, the order made by the first judge pursuant to Pt VIII of the Act provided for the distribution of the net sale proceeds of the former family home between the parties in equal shares (Order 42) and the father’s retention of his superannuation entitlements (Order 43(e)). The mother retained her own superannuation entitlements (Order 44(e)), but she had sought 85 per cent of the net proceeds realised on the sale of the family home, after the father’s reimbursement of certain sums to her, together with 85 per cent to be split from the father’s superannuation interest (at [283]–[286] and [292]).
Given the established value of the parties’ property and superannuation interests (at [288]), the difference between the ultimate result and the result for which the mother had contended approximated $100,000 in property and $65,000 in superannuation.
In the “Amended Amended Amended Notice of Appeal” dated 22 February 2021, upon which the mother was granted leave to rely, she also appealed from the orders which enabled the registrar to execute documents if needed (Order 46), the destruction or return of all documents produced on subpoena at the expiration of the appeal period (Order 50), and the grant of leave to apply for costs if desired (Order 51), but none of those orders was the subject of any challenge in either the grounds of appeal or mention in the submissions made in support of them so no more need be said about those orders.
Procedural fairness (Ground 34)
This ground contended:
[The primary judge] erred by denying the [mother] a Fair Hearing & procedural fairness & natural justice by unreasonably interfering in the questioning of witnesses & to test the evidence & questioning the [mother] at the Bar Table without the [mother] being sworn in & relying on same.
The ground did not distinguish between its application to the appealed parenting orders and the appealed property settlement orders. Without such elucidation, we assume it relates to the parenting proceedings (due to the focus on the Family Consultant’s evidence) although it could tangentially concern the property settlement orders and therefore deal with it first in this appeal (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 (“Royal Guardian”) at [9]).
In support of this ground alleging unreasonable interference by the primary judge, the mother referred us to only two sections of the transcript when she was cross-examining the second of two Family Consultants. While the Family Consultants were retained in the proceedings in respect of only the parenting dispute, the mother conducted her property settlement application contending her entitlement was enlarged by the application of principles espoused in Kennon v Kennon (1997) FLC 92-757 and so any evidence given by the Family Consultants about family violence and its affect upon the mother was feasibly relevant. Hence, any interference by the primary judge could also be rationally relevant to the procedural fairness of the hearing which produced the appealed property settlement orders. Nevertheless, some short discussion of the identified parts of the transcript reveals the mother has no cause for complaint and this ground should fail.
The first point of interjection is where the mother asked the Family Consultant to confirm he had not signed one particular page of his report. He confirmed that was so but, as the mother did not hear his answer, the primary judge interjected to confirm his answer was “yes”. Her Honour then went on to ask why the Family Consultant had not signed that page, which he could not explain, and to then ask whether the failure to sign that page affected the contents of the report, which he said did not. The mother then continued her cross-examination.
The second point of interjection is where the mother was asking the Family Consultant to comment upon whether the content of some text messages sent to her by the father years before should be a “concern” for the Court. The primary judge interjected to clarify with the mother whether the question meant the Court should be “concerned” about the father’s use of vulgar and crude language in the texts, or because the content of the texts allegedly amounted to family violence, or for some other reason altogether. When the mother explained the question was directed to “concern” about the father’s “coercive” conduct, her Honour disallowed the question because the Family Consultant had already acknowledged that, if the father acted in the ways the mother alleged, it would “constitute coercive, controlling violence”. So the cross-examination then continued.
Both parties were self-represented at the trial and the primary judge interrupted at numerous points during the trial to try and help the mother formulate her questions and contentions, due to her forensic inexperience, and to save time. An appellate court should be slow to criticise a trial judge for so doing.
Contributions (Ground 26)
This ground contended the primary judge erred by giving insufficient weight to the mother’s “much greater contribution to the financial resources of the parties”, which it was said resulted in her not receiving enough of the parties’ property and superannuation interests.
Before turning to the mother’s submissions, it is instructive to review the primary judge’s findings, expressed in these terms:
315.Noting that, in assessing the contributions made by the parties, the Court embarks upon a process involving the exercise of a broad discretion in respect of which reasonable minds may differ and that, whilst this process is neither an accounting or mathematical exercise, it does involve a movement from “a qualitative evaluation of contributions to a quantitative reflection of such evaluation” (that is, a “leap” from words to figures), I consider that, when the contribution of [the mother’s] inheritance is excluded, [the father] and [the mother] made equal contributions, albeit in different ways, during their cohabitation.
316.However, I consider that [the mother’s] contributions in the period since separation have exceeded those made by [the father]. I accept that she has made greater contribution to the care of the children since then, although I also note that this has, on occasion, been as a result of her attitude toward him caring for the children. Even with that, though, it is clear that [the mother] has provided the majority of the children’s care since September 2012.
317.None of the orders proposed by either party will have any effect on the earning capacity of either party.
…
322.Having regard to the parties’ respective contributions during their cohabitation and after their September 2012 separation and taking into account the relevant “future needs” considerations, I am satisfied that, in all the circumstances of this case, the orders which are just and equitable are orders which result in:
a)[the mother] to retain the entirety of the funds she inherited, the property currently in her possession (including that which I accept she removed in the lead up to and at or around the September 2012 separation and those chattels which she retained at that time and which were under her control then and until she ceased to live in the former matrimonial home in about November 2016), her entitlements to superannuation; and
b)[the father] to retain the property currently in his possession (including whatever proceeds he received from the sale of motor vehicles and whatever chattels he has in his possession) and his entitlement to superannuation (noting that it is more likely than not that there has been an increase in the value of the same in the more than six years since he and [the mother] separated and that such increase is likely to have occurred, at least in part, as a consequence of his continued engagement in paid employment); and
c)each of [the parties] receiving half of the nett sale proceeds obtained from the sale of the former matrimonial property.
(Emphasis added) (Footnotes omitted)
Perhaps unusually, the primary judge did not express the ultimate result as a percentage division (Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]), but it is not obligatory to do so, since the terms of the Act do not require it (Fitzmaurice & Woolridge (2020) FLC 93-951 at [19] and [27]).
As can be seen from the extracted reasons for judgment, excluding the inheritance kept by the mother, the primary judge assessed the parties’ contributions as being equal during their cohabitation, but recognised the mother’s superior post-separation contribution as the children’s primary carer. The mother failed to explicate why the primary judge fell into error by not according sufficient weight to her allegedly “much greater contribution to the financial resources of the parties”, as was contended by this ground.
The only clear submission made by the mother was as follows, though it hardly correlated with the ground of appeal:
There has been a failure to properly & equitably assess the property of the asset pool & contributions & the long-standing issues of financial misconduct by the Father…
(Emphasis added)
The bald submission was not elaborated in any meaningful way and must therefore be rejected.
The meaning of the remainder of the mother’s submissions in respect of this ground of appeal, remembering it is confined to consideration of only the parties’ contributions, was completely opaque, as the following selection of quotes demonstrates:
… [The primary judge] failed to apply procedural fairness as it related to marital assets, & Her Honour was ‘plainly wrong’ & failed to properly exercise jurisdiction…
…
… fact finding has not been conducted; & as such is an error of jurisdiction. There has been a serious fact-finding supposition which has led the Court into error.
…
… In an adversarial system, it is a dangerous precedent to set in accepting hearsay & opinion evidence into evidence, failing to test indirect evidence, & writing findings of fact without due process. The Court has a binding obligation under common law principles to follow due process; & there is a systemic failure to make an adjustment of the property pool in the [mother’s] favour…
(As per the original)
This ground fails.
Error of law (Ground 25)
This ground asserted, in effect, the primary judge failed to give sufficient weight to the mother’s continuing role as the primary carer for the children as a material consideration under s 75(2) of the Act, particularly having regard to the special needs of the eldest child. That child was diagnosed with Autism Spectrum Disorder in February 2014 which was confirmed in November 2017 (at [170] and [173]). It was the mother’s case that the child’s problems were exacerbated by contact with the father, which the primary judge dealt with (at [174]–[180]). It is true that the primary judge did not deal further with the needs of that child or any special care that was required but, as the mother did not point to any such evidence, no error was demonstrated.
In respect of s 75(2) of the Act, the primary judge said:
321.I consider it much more likely than not that each of [the parties] are healthy enough to engage in paid employment. Whilst [the mother] will continue to be primarily responsible for the children’s day-to-day care, the time that they will spend with their father in accordance with the final parenting order will ensure that he is required to share more in this burden than has previously been the case; given the increase in their time with him, he will also be required to financially support the children to a greater extent during their time with him.
The primary judge decided against any adjustment under s 75(2) of the Act, but that was in the context of the mother’s retention of the balance of her inheritance in the approximate sum of $109,000 (at [310] and [319]). At the time of trial, the mother held bank accounts with balances of over $137,000, whereas the father’s bank account balance was negligible (at [288]). In circumstances where the mother’s savings represented a quite substantial proportion of the parties’ overall assets, the finding in respect of s 75(2) of the Act is not demonstrated to be unreasonable and so this ground fails.
Failure to make specific orders (Grounds 27 and 32)
These grounds contend the primary judge erred by failing to make orders addressing two particular issues.
The first concerns the asserted necessity for the primary judge to have restrained a trustee by injunction from distributing the net sale proceeds of the former family home to the parties in equal shares until the appeal period had expired. The complaint is without merit because the mother did not apply for such an injunction at first instance and, in any event, once she appealed, she failed to make an application for the orders to be stayed pending the outcome of the appeal, which could have cured any problem she perceived.
The second concerns the absence of any final order dealing with the father’s return to the mother of some personal property, comprising photographs and DVD recordings of the parties’ wedding and the christening of one child. An interim order was made in May 2017 requiring the return of the photographs and DVDs to the mother, but the father had not complied by the time of trial.
So far as we can tell, the mother did not seek to enforce the interim order during the currency of the litigation. Nor did she formally seek any specific final order dealing with the photographs and DVDs. She did, however, belatedly make an oral application during final submissions for an order dealing with the property, which the primary judge acknowledged in the following terms:
[THE MOTHER]: … I’m sorry. I just cannot see in here, your Honour, where I’ve asked for the return of those – the DVD and CD of the wedding and christening, as referred to in Judge Forrest’s order number 9 of 26 May 2017. But that order needs to be included.
HER HONOUR: Sorry. What was the date of Forrest Js order?
[THE MOTHER]: 26 May 2017.
HER HONOUR: Okay. Yes…
(Transcript 14 February 2018, p.194 lines 12–21)
In dealing with the issue, her Honour said this in the reasons for judgment:
324.Whilst not the subject of a specific order, I note that [the father] has previously been ordered on 26 May 2017 to deliver the original DVD recording of [the eldest child’s] christening and a DVD on which his and [the mother’s] wedding has been recorded and certain photographs of both occasions to [the mother]. Nothing in the Order I make absolves him of that responsibility and he should attend to that issue as a matter of urgency.
The primary judge was wrong to say the interim order made in May 2017 would prevail beyond the final order made by her Honour. The final order made by her Honour, which provided for the parties to individually retain all of the personal property then in their respective possession or control (Orders 43 and 44), expressly discharged the interim order and allowed the father to retain the photographs and DVDs, contrary to the observations in the reasons for judgment. Even if the final orders had not expressly discharged the interim order, it was discharged ipso facto by the final determination of the action (Sadasivam & Seshan (2019) FLC 93-899 at [26]) and, once discharged, could not be enforced.
It follows that the primary judge’s error affected the result of the property settlement dispute, albeit in respect of only the ownership of some personal property of no commercial value. It does, however, have sentimental value to the mother and has been the subject of debate between the parties over several years. Given the error manifest in the reasons for judgment (at [324]), the omission of any order dealing with the mother’s oral application for the return of the photographs and DVDs cannot be properly regarded as an accidental slip or omission.
The resolution of the parties’ contest over that property could not be affected by any need to adduce further evidence, either on the re-exercise of discretion in this appeal or upon re-hearing at first instance following remitter, in accordance with established principles (Allesch v Maunz (2000) 203 CLR 172 at 183 and 191–192). Nor could any further submission be usefully made about the utility of an order to quell the controversy over that particular property. The property is held by the father, he failed to return it under the interim order, and he did not tell the primary judge he could not comply with a final order to the same effect. Consequently, the error can be corrected by an order being additionally made in the re-exercise of discretion, in these terms, reflecting both her Honour’s expressed intention (at [324]) and the terms of the original interim order made in May 2017:
The respondent shall forthwith cause to be delivered to the appellant in an undamaged and working condition:
a)The original DVD recording of the christening celebration for the eldest child;
b)The original DVD recording of the wedding celebration of the parties; and
c)The original CD storing the photographs of the said christening and wedding.
That additional order will integrate seamlessly with the text of Orders 43 and 44 made by the primary judge.
THE PARENTING APPEAL
At the time the appealed orders were made pursuant to Pt VII of the Act in December 2018, the parties’ two children were aged 12 and nine years respectively.
In summary, the orders provided for the children to live with the mother and for them to spend time with the father on alternate weekends, for one-half of school holiday periods, and on other special occasions. The parties were given equal shared parental responsibility for the children.
In the appeal, the mother sought to challenge the orders relating to the allocation of equal shared parental responsibility (Orders 3–5), the communication between the parties (Orders 29 and 32), the parties’ attendance at and their interaction with schools and other individuals associated with the children’s care (Orders 34–35 and 37), the time the children spend with the father and their communication with him (Orders 6, 8–15, 17–19 and 22), the changeover venues (Order 7), the personnel who may attend changeovers (Order 24), the exchange of the children’s passports (Order 21), and the liberty granted to the parties to apply on short notice to enforce the orders (Order 39).
The mother began the trial seeking sole parental responsibility for the children and for them to only spend professionally supervised time with the father at a contact centre four times each year, but her position evolved. Close to the end of her cross-examination, she conceded the children could spend time with the father on alternate weekends, for up to seven consecutive nights during school holidays, and on other special occasions, though she sought to constrict that proposal again to only alternate Saturdays during final submissions. As the primary judge correctly recorded in the reasons for judgment, the mother’s proposals “oscillated” (at [43]–[45]).
The central tenet of the mother’s case at trial was that the father had subjected her to severe coercive and controlling behaviour, amounting to “family violence” as defined in the Act (s 4AB), over many years and he would likely continue to do so. In addition, she contended the father had neglected the children’s care. She inferentially contended that, unless orders were made in the terms she proposed, neither she nor the children would be adequately protected from the harm which was liable to result from their subjection or exposure to family violence and neglect, thereby engaging s 60CC(2)(b) and s 60CG(1) of the Act.
The mother’s case was not found persuasive, as is evident from the orders giving the parties equal shared parental responsibility for the children and providing for the children to spend substantial amounts of time with the father. The central proposition advanced in this appeal is that the first judge “minimise[d]” and trivialise[d]” her evidence. Almost every other argument stems from it.
The mother’s deep disappointment with the litigious process and the appealed orders is manifest from her written submissions in the appeal, which contain the following commentary by way of introductory comments:
I have been subjected to institutional DARVO by the FC, by the ICL & by the [father]…
…
… DARVO is an acronym used to describe a common strategy of abusers. The abuser will: Deny the abuse ever took place, then Attack the victim for attempting to hold the abuser accountable; then they will lie & claim that they, the abuser, are the real victim in the situation, thus Reversing the Victim & Offender. This usually involves victim blaming… Some therapists see DARVO as a specific form of gaslighting.
…
There is a distinct double standard when it comes to parenting between Mothers & Fathers…
…
… the FC ignores all evidence of domestic & fv & places no significant weight on it as is it required to do under s 60CC2(b)…
…
… The real issue underlying the problems with the Family Court is gender inequality, patriarchy & men’s ongoing entitlement to control women long after separation.
(As per the original)
Notwithstanding the mother’s doubts about the integrity of the Court, which we accept to be honestly felt, her appeal is determined on its merit. However, we only deal with the submissions which genuinely pertain to the grounds of appeal and do not take into account the vast discursive narrative about legal policy and systemic incompetence.
Bias (Ground 19)
Complaints of bias must be determined first in any intermediate appeal (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612).
This ground contended the primary judge demonstrated bias against the mother by making dozens of factual findings which she considered to be wrong. It is unnecessary to refer individually to each of those findings, as two important points must be made. First, the ground did not specify whether her complaint was of actual or apprehended bias and her submissions implied her use of both allegations interchangeably without discernment. Secondly, the primary judge was obliged to make findings to quell material factual disputes between the parties and, even if her Honour did fall into appealable error by making findings which were wrong, the mistake alone did not necessarily prove either actual or apprehended bias, as the mother wrongly assumed.
The real complaint underlying the mother’s assertion of bias was the primary judge’s alleged “minimis[ation]” and “trivialis[ation]” of her evidence about the father’s commission of family violence and his neglect of the child’s needs. The evidence of family violence and neglect was controversial and so, to settle the controversy with factual findings, the reliability of the parties’ evidence inevitably came under scrutiny. The reliability of the mother’s evidence is the subject of other grounds of appeal (Grounds 23 and 29) and will be addressed there.
To deal with this ground of appeal it is only necessary to observe that no submission made by the mother about allegedly mistaken factual findings went anywhere close to demonstrating either the primary judge’s actual bias (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72], [127] and [177]) or apprehended bias (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345), when established legal principles are applied. The mother’s submissions really amounted to no more than mere statements of her subjective belief in the primary judge’s bias.
Procedural fairness (Grounds 30 and 34)
Just like complaints of bias, wider complaints about the denial of procedural fairness must be considered in an appeal before more specific complaints of factual, legal and discretionary error (Royal Guardian at [9]).
We have already discussed Ground 34 in the context of the property settlement appeal and explained why it is without merit. That reasoning applies equally to the parenting appeal.
Ground 30 contended the primary judge failed to afford the mother procedural fairness in two particular ways: first by dismissing her application to discharge the ICL in September 2017; and secondly, by allowing the ICL at trial to make “determinations of evidence in excess of jurisdiction”. The gravamen of the mother’s complaint is that the ICL was biased against her and the primary judge erred by failing to constrict the manner in which she conducted the case for the children. That view stems from an apparently honest belief that, by having formed a view the children’s interests would be best served by them living with the father instead and thereby conducting her case in alignment with the case advanced by him, the ICL was biased against her or, otherwise, incompetent.
The mother applied in September 2017 to discharge the ICL, but the application was refused and ex tempore reasons for judgment delivered (Darley & Darley (No. 2) [2017] FamCA 791 at [17]–[26]). Allowing for the argument that the dismissal order amounted to no more than an interlocutory procedural ruling from which no appeal was then available and the order is now amenable to challenge in the appeal from the substantive orders (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–485 and 494–497), the mother must still demonstrate the dismissal order (assuming it was wrongly made) actually affected the final orders, which she could not do. Her bare allegation of the ICL’s bias or incompetence neither proves the fact, nor demonstrates that the decision to dismiss her discharge application in September 2017 was wrong, nor shows any procedural unfairness in the hearing.
The ICL was, of course, obliged by the terms of her appointment to form a view on the evidence about the suite of orders which would best serve the children and to conduct a case accordingly. Just like the freedom enjoyed by the mother, the ICL was free to collate information, adduce evidence, cross-examine witnesses, and make submissions as she saw fit. Contrary to the mother’s submission, the ICL made no “determinations of evidence” and did not exercise any “jurisdiction”. The ICL bore no responsibility at all for the procedural fairness of the hearing. That obligation rested with the primary judge, but it was not an integral component of the judicial role to direct or confine the manner in which the ICL conducted the case on behalf of the children so as to ensure the mother’s individual satisfaction with the fairness of the hearing. The final parenting orders were unaffected by the retention of the ICL in the proceedings.
Credit findings (Grounds 23 and 29)
These grounds alleged the primary judge erred by not preferring her evidence to that given by the father (Ground 23) and by failing to place weight on “credible scientific research” attached to her affidavits (Ground 29).
The only submission made in support of Ground 23 was in these terms:
252.The [father] did not seek to cross-examine me & challenge my evidence at trial…
At least by implication, her point was that if the father abstained from challenging her in cross-examination then the primary judge was obliged to accept her evidence as being correct, but there are obvious impediments to the success of such an argument.
The parties’ evidence-in-chief was in stark conflict, so it was clear from the outset that the father disagreed with large tranches of the mother’s evidence. His failure to cross-examine her should not be presumed to represent acceptance of her evidence. It more likely signifies his satisfaction with the ICL’s prior cross-examination of the mother and, in the absence of his legal representation, an unwillingness to ask her any more questions himself. The parties acceded to the primary judge’s suggestion that the ICL cross-examine each of them first. The ICL challenged the mother about many aspects of her evidence and, by the time the cross-examination concluded, the mother had conceded the children could spend substantial amounts of unsupervised time in the father’s care, which concession tended to undermine her case about the central importance of the father’s family violence and neglect.
As is clear from the reasons for judgment, the primary judge considered at length the merit of the evidence given by the parties in relation to each of the mandatory considerations prescribed by s 60CC of the Act. Sensibly, her Honour did not make blanket findings about the parties’ credit, or lack thereof. Indeed, the primary judge found reason to doubt the evidence of both parties in some respects, which her Honour explained in these terms:
17.My concerns about the evidence given by both parents at various times during the proceedings make this impasse somewhat difficult to resolve: both parents at times approached the giving of evidence with their own benefit more in mind than an objective recitation of the facts; each was, in my view, willing to obfuscate on occasions, albeit that they approached this task differently too…
(Emphasis added)
The primary judge considered the mother’s evidence about the father’s commission of family violence, all of which related to incidents either before or at the time of their separation in September 2012 (at [85]–[116]), but it was obviously appropriate for the mother’s allegations to be considered in context. The subject events occurred more than two years before the parties first agreed to final parenting orders in December 2014, which orders provided for the children to spend substantial amounts of unsupervised time with the father, and more than five years before the start of the trial in October 2017. Moreover, the mother’s concessions during cross-examination about the amount of unsupervised time the children could safely spend with the father only served to emphasise the waning significance of her historical allegations.
Her Honour found the parties’ relationship was characterised by verbal abuse in the past (at [89] and [228]), but was unconvinced the father had committed “family violence” or “domestic violence” (at [237] and [239]) or that the father communicated with the mother in a “controlling and coercive manner” (at [241]). The primary judge’s attention was principally focussed upon any current risk of harm allegedly posed by the father to the children, as s 60CC(2)(b) of the Act required. Her Honour did not overlook s 60CC(3)(k) of the Act, acknowledging the numerous past temporary family violence orders made in the mother’s favour by a State court, the conditions of which did not trespass upon any parenting orders (at [228]–[239]).
The primary judge also considered the mother’s evidence about the father’s care of the children between 2012 and 2018 (at [117]–[154]), which was contended to be either abusive or neglectful. The primary judge found the father did not deliberately harm the children and that they were likely to be safe spending unsupervised time with him, though his care was somewhat more laissez-faire than the mother’s approach to their care (at [152]–[154], [188] and [196]).
All of those findings were eminently open to the primary judge. There was no error.
Turning then to Ground 29, the mother filed her Case Outline document the evening before the trial commenced, informing the primary judge that she proposed to rely upon 22 affidavits she had filed in the proceedings between May 2013 and October 2017. While the evidentiary material relied upon by the parties is not identified in the reasons for judgment, following lengthy discussion at the beginning of the trial about the material upon which the mother relied, she eventually nominated only six affidavits. Then, in May 2018, the mother successfully sought leave to re-open the evidence after six days of trial to adduce the evidence set out in three further affidavits she filed on 20 April 2018, 1 May 2018 and 10 May 2018.
Curiously, the dates of all nine affidavits identified by the mother do not readily correspond with either those listed in her trial Case Outline document or those contained within the Appeal Book but, doing the best we can, the material annexed to the mother’s affidavits which seems to correlate with her description of “credible scientific research” comprises:
(a)An article by Charles Pragnell entitled “Family Reporters Overstep the Mark”;
(b)An excerpt from an article entitled “Parental Alienation Syndrome and Parental Alienation (January 2009)” published by The National Online Resource Center [sic] on Violence Against Women;
(c)An article by Barry Goldstein entitled “Why is Shared Parenting Supported?”;
(d)Another article by Barry Goldstein entitled “DV Cases Require DV Experts: Duh!”;
(e)An article by Samantha Jeffries entitled “In the Best Interests of the Abuser: Coercive Control, Child Custody Proceedings and the ‘Expert’ Assessments that Guide Judicial Determinations”; and
(f)Excerpts from the National Domestic and Family Violence Bench Book.
In compiling that list, we have omitted the portions of articles selectively quoted by the mother in the text of her affidavits. It will be recalled that this ground complains only of insufficient weight accorded to material “attached” to her affidavits.
Save for the contents of the National Domestic and Family Violence Bench Book, which is widely recognised as a valuable judicial resource, we have no idea whether the other articles are either “scientific” or “credible”. There was little or no foundation in the evidence enabling such findings to be made. The mother did not appear to use the articles in her cross-examination of the two Family Consultants. Nor did she refer to any of the articles in her final submissions, so it is unsurprising her Honour did not specifically refer to them in the reasons for judgment.
The only submission made by the mother in the appeal in support of the ground alleging the primary judge’s error by failing to place weight in the opinions expressed by the authors of those works was in these terms:
283.Peer reviewed research clearly demonstrates that Father’s that have no interests in the children prior to separation only do so after separation to maintain control & to punish the mother for leaving…
(As per the original)
We reject the submission as no more than a conclusion reached by the mother which cannot be accurately sourced to any of the articles adduced in evidence at the trial by her.
Grounds 23 and 29 should both fail. No error was demonstrated in the approach taken by the primary judge to the evidence.
Errors of law (Grounds 1, 2 and 25)
These grounds of appeal alleged various errors of law, namely: erroneously making an order for equal shared parental responsibility (Ground 1); erroneously failing to assess the “future risk of violence” (Ground 2); and erroneously failing to consider the best interests of the children (Ground 25). Each ground cannot be established.
Her Honour correctly referred to applicable legal principles (at [77]–[78]) then proceeded to consider the evidence and make findings, as required, by reference to each of the mandatory factors under s 60CC of the Act driving the determination of the result which serves the children’s best interests (at [79]–[242]). Ground 25 must therefore fail, as it wrongly asserts a “failure to consider” the children’s best interests, as distinct from some legal or factual error made in the course of such consideration.
Her Honour expressly considered and dealt with the risk of harm allegedly posed by the father to the children pursuant to s 60CC(2)(b) of the Act, finding that he did not pose such a risk, in which case Ground 2 must also fail. Her Honour did assess the risk, but just did not make the finding for which the mother had contended.
In prosecuting Ground 2, the mother correctly submitted in her Summary of Argument that “[c]ontext is important”. We have already acknowledged that to be correct in the discussion of Ground 23. Given the context in which the mother pressed her case for how the father posed an unacceptable risk of harm to her and the children, as is discussed under that ground of appeal, the primary judge’s findings in respect of s 60CC(2)(b) of the Act were well open.
We reject the mother’s submissions in these terms:
… within an adversarial rights-based system, children’s essential needs are often overlooked, & their safety, security & primary attachment relationships are placed at risk.
…
… the Family Court ignores & mismanages fv claims…
…
… There have been numerous Inquiries that have found that the Family Court is not fit for purpose…
…
The Court does not understand trauma & trauma responses…
(As per the original)
The primary judge considered the mother’s allegations of family violence (at [86]–[154]) and found that some instances of violence had occurred, such as the father hitting a car windscreen, but did not accept the mother’s view of the seriousness and significance of those that were established (at [99]). We are satisfied that the primary judge did not thereby downplay the issue of family violence or its seriousness but simply, on the evidence before her Honour, did not see such violence in the same light as the mother. No error accordingly arises.
Having considered the evidence pertinent to the factors prescribed under s 60CC of the Act, her Honour turned to consider the manner in which parental responsibility for the children would be allocated (at [243]–[253]). Her Honour acknowledged that the presumption of equal shared parental responsibility did not apply (at [243]) and, furthermore, how the ICL and both parties sought orders for the residential parent to have sole parental responsibility (at [245] and [250]–[251]), but still decided to make an order for equal shared parental responsibility for reasons explained in these terms:
246.I accept that there has been an absence of useful communication between the parents. I note that the parents have a history of poor parental communication. I accept that their history of dysfunction within their relationship, the allegations of domestic violence and those matters which have been accepted as having occurred all combine to suggest that their capacity to communicate with each other sufficiently as to be able to reach decisions jointly is significantly impaired.
247.However, I have no doubt at all that, if an order for sole parental responsibility is made in her favour, the mother will be further empowered to continue to attempt to diminish the father’s role in the children’s lives. Further, I am not confident that, if an order for sole parental responsibility was made to which was attached the “usual” conditions to require her to seek the father’s opinion before making a decision about a particular issue, take it into account and revert to him with the result, that the mother would even comply with such an order. After all, she unilaterally changed the children’s place of residence despite the existence of an order for equal shared parental responsibility and she continued to transport the children back to C Town on a daily basis until the term ended so that the father would not be alerted to such a significant change having occurred without his input.
248.Of course, this conclusion does not axiomatically mean that an order for equal shared parental responsibility is something which is in the children’s best interests. The very real prospect of a stalemate in decision-making, with its possible attendant adverse impact on the children, must be taken into account also.
…
252.Whilst others may disagree, for the reasons outlined above and in the exercise of the broad discretion reposed in Judges at first instance, I am not persuaded at this time that the children’s best interests will be met by making an order according to their mother sole parental responsibility for them. In arriving at this determination I have also taken into account the highly likely prospect of disagreement between the parents about matters encompassed within the exercise of their parental responsibility, especially where the same involves the making of making decisions about major long term issues.
253.However, I have also taken into account that the father seeks to be involved in any decision–making about major long term issues relating to the children; that he has previously actively sought the mother’s advice about how to manage the children’s medical needs; that he has previously sought her advice about how she manages certain aspects of the children’s behaviour toward each other so that he could do the same thing when they were in his care; and that his views about the same may well provide a counterbalance to the mother’s strong views and that, as a consequence, the children may be afforded the best decision because their parents will be, in a sense, forced to reach a compromise or accept each other’s input as a precursor to making their joint decisions about major long term issues.
In essence, the mother advanced two arguments for why the order was wrongly made.
First, she said the order would almost surely result in further litigation and the primary judge therefore failed to correctly heed s 60CC(3)(l) of the Act. However, that provision merely requires the Court to consider whether it would be preferable to make orders which are less likely to lead to further litigation. It is only an invitation to consider orders; not an injunction to make them. The primary judge expressly did consider how an order for equal shared parental responsibility would create the “highly likely prospect” of the parties’ disagreement in the future (at [252]) which, in the absence of either compromise or capitulation, could only then be solved by another judicial determination. The consideration her Honour gave to the issue therefore satisfied s 60CC(3)(l) of the Act.
Secondly, the mother argued the order was contrary to common sense, because of the parties’ intractable conflict, and it contradicted comments made by the primary judge during the trial. Such preliminary comments made by the primary judge were really no different from the reasoning expressed in the judgment and did not amount to contradiction at all. For example, before the trial commenced, the primary judge said:
[HER HONOUR]: … it seems highly unlikely that anyone is going to be able to persuade me that the two of you can communicate and cooperate sufficiently to be able to make joint parental decisions about major long-term issues for your children… So, so far, it seems anyone attempting to persuade me that an order for equal shared parental responsibility, even if found – even if the presumption were found to apply, would be likely to work will have an uphill battle, but of course I’m always open to persuasion. Let’s see…
(Transcript 17 October 2017, p.9 line 43 to p.10 line 7) (Emphasis added)
The primary judge conceded another judge might have feasibly reached a different conclusion (at [252]), but that is the very essence of discretionary decisions and does not reveal error. Ground 25 must also be rejected.
Error in relation to expert opinion evidence (Ground 3)
This ground of appeal was, respectfully, difficult to follow. Advertence to the mother’s Summary of Argument implied her complaint was about the primary judge’s alleged ignorance of how autism affects children and the wrongful failure to attribute sufficient weight to the evidence of the eldest child’s paediatrician, Dr JJ.
It is important to note that Dr JJ was not a witness in the trial. He did not file an affidavit and was not called to give any oral evidence. The only evidence attributable to Dr JJ was that contained within his business records which were either annexed to the mother’s affidavits or produced in answer to subpoena and separately tendered.
In the reasons for judgment, the primary judge referred to the involvement of Dr JJ and numerous other doctors in the eldest child’s medical care (at [170]–[186]). No aspect of the reasons suggests the primary judge entertained any doubt about the eldest child’s diagnosed medical condition or her proper therapeutic treatment by any of those doctors. In fact, her Honour expressly accepted what was known of Dr JJ’s views in these terms:
182.In a general sense, I accept Dr JJ’s information that, speaking generally, it is extremely difficult for a child diagnosed with ASD to adapt to changes in their routine or behaviour management strategies: I consider that this makes it even more important that both parents adhere to the terms of operative orders so that they implement whatever parenting regime is ultimately determined to be in [the eldest child’s] best interest consistently, so that she is not asked to deal with changes in her routine or the behaviour management strategies used by her parents whilst she is in their respective care. I also generally accept Dr JJ’s opinion that, generally speaking, consistency is very important for [the eldest child’s] ongoing emotional stability, schooling and education: the comments just made about the importance of consistently adhering to the parenting orders so that the time [the eldest child] spends with each parent, as provided for by them, becomes her consistency and her routine are apposite.
…
184.I also generally accept Dr JJ’s opinion that generally, children with ASD are very perceptive of mood…
The only caveat to the acceptance of Dr JJ’s opinions was expressed as follows:
185.In the circumstances, save as specifically addressed, I am not persuaded that I can safely ascribe weight to those aspects of Dr JJ’s report which rely upon the mother’s information and recounting of events, given that it is clear that the mother has sought in these proceedings to rely on the fact of [the eldest child’s] diagnosis with ASD as a reason to curtail her time with her father.
We see no error in that reasoning. There is no merit in the mother’s complaint about the primary judge’s treatment of information sourced to Dr JJ.
Error in relation to the Family Consultant (Ground 13)
This ground of appeal asserted the primary judge erred at law by failing to ensure the second Family Consultant had:
… the necessary expertise in domestic & family violence & children with special needs…
At trial, evidence was taken from two Family Consultants. The first Family Consultant prepared reports in November 2013 and May 2014 (at [53]–[54]) but, given the passage of time, an updated report was procured from a second Family Consultant in 2017 (at [55]–[76]). The mother railed against the reliability of the evidence of both Family Consultants at trial, but only the expertise of the second was in issue in this appeal.
The second Family Consultant is a social worker, appointed as a Family Consultant within the meaning of the Act (s 11B(c)) pursuant to reg 7 of the Family Law Regulations 1984 (Cth). His designation as such strongly implied he had sufficient expertise and experience to offer opinion evidence which would be capable of carrying probative value in the parenting proceedings though, of course, the primary judge was not obliged to accept him as an expert or his evidence having regard to all the material before the court, including that which arose from cross-examination.
In September 2017, the mother applied for the second Family Consultant to be discharged, but her application was dismissed and ex tempore reasons for judgment delivered (Darley & Darley (No. 2) at [5]–[13]). Those ex tempore reasons cogently explained how any challenge to the reliability of the Family Consultant’s evidence on grounds of inexperience or lack of expertise should be explored in cross-examination at trial the following month, which approach accorded with authority (Bass and Bass (2008) FLC 93-366 at [23]–[39] and [48]–[52]; Carpenter & Lunn (2008) FLC 93-377 at [219]–[227]; Nagel v Clay (2020) 60 Fam LR 550 at [134]–[162]).
The mother embraced the opportunity to cross-examine both Family Consultants at trial, including in relation to their expertise and experience. Having done so, during final submissions, the mother initially asked the primary judge to accept the second Family Consultant’s evidence as being correct. She submitted:
[THE MOTHER]: … [The second Family Consultant] also touched on DV being inappropriate role modelling, and I would ask your Honour to consider the evidence that [the second Family Consultant] gave yesterday in relation to the questioning that I put towards him to be considered in this matter…
(Transcript 14 February 2018, p.172 lines 41–44)
Shortly afterwards, the same issue arose again in the mother’s closing submissions which led to this exchange with the primary judge:
HER HONOUR: But now having spoken with [the second Family Consultant] you didn’t seem to be critical. You’ve just made a submission earlier that I should accept his evidence.
[THE MOTHER]: Well, that’s - - -
HER HONOUR: In consequence of what your questionings were.
[THE MOTHER]: Yes, it - - -
HER HONOUR: So you don’t get it both ways, it seems to me. It’s difficult.
[THE MOTHER]: But I didn’t know that until I questioned him yesterday.
(Transcript 14 February 2018, p.176 line 40 to p.177 line 3)
The only rational inference is that, having cross-examined the second Family Consultant, the mother liked his evidence and invited the primary judge to accept it. Her Honour duly did so (at [66], [74]–[76] and [159]–[160]), which means this ground of appeal is impossible to understand.
Erroneous findings (Grounds 4, 5, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 17)
These grounds collectively allege the primary judge erred by making certain findings in dozens of paragraphs throughout the reasons for judgment, but all grounds must be rejected. The mother simply asserted they were incorrect findings without explaining why. In the main, the mother only emphasised the evidence upon which she relied. She failed to engage with the obligation to explain why the findings reached by the primary judge were not open on all of the available evidence, which included that adduced by the father and the ICL.
The mother also sought to attack findings made in a contravention hearing in October 2017 (Ground 10), which findings were allegedly adopted by the primary judge. The primary judge formerly dismissed certain contravention applications brought by the mother in October 2017 and expressly incorporated the findings then made into the reasons for judgment supporting the appealed orders (at [187]). It was permissible to do so (s 69ZX(3)(b)) and, since there was no appeal from the orders flowing from the earlier contravention hearing, the mother cannot now challenge the findings underpinning the dismissal orders.
Two other grounds were styled as errors in the form of the failure to make particular findings (Grounds 9 and 17) but, in reality, they were complaints about findings made by the primary judge, with which she disagreed.
The first complaint was that the primary judge should have found the father “repeatedly” and “negligently” allowed the children to become sunburned (Ground 9), which issue was hotly contentious at trial. The primary judge found the father had allowed the children to become sunburned on occasions (at [207]), but the manner in which the mother reacted by taking the children to hospital and doctors was “likely more harmful to the children than any minor exposure to the sun” (at [158], [162] and [208]–[215]). The findings were open.
The second complaint pertained to the father’s alleged neglect of the children (including, again, by allowing them to become sunburned) and his alleged commission of family violence. The primary judge’s findings regarding the father’s alleged neglect of the children have already been covered (under Grounds 9 and 23), as have the findings concerning the father’s alleged family violence (under Grounds 2 and 23). The complaint is without substance.
Erroneous failure to make findings (Grounds 20, 21, 22, 31 and 33)
The mother complains the primary judge failed to make findings that the father:
a)“made false & misleading statements to the Family Report [sic]” (Ground 20);
b)“committed perjury” (Grounds 21 and 31);
c)admitted in cross-examination that a State magistrate, during parallel proceedings concerning a contested family violence order, told him he was lucky not to be within the jurisdiction of another State magistrate for otherwise he would have been charged with an offence (Ground 22); and
d)contravened orders made by other judges in December 2014 and May 2017 (Ground 33).
Addressing the last complaint first, the interim orders made in May 2017 related only to the pending property settlement dispute, so any alleged breach of those orders had nothing at all to do with the parenting dispute. In addition, the mother made no submission about why it was necessary for the primary judge to find the father breached the parenting orders made in December 2014, particularly when those orders were superseded by other orders made in August 2016. She did not even assert in the appeal what finding ought have been made.
A central theme of the mother’s case was the general unreliability of the father’s evidence, but the finding actually made in respect of the parties’ respective credit (at [17]) has already been canvassed in the discussion under Ground 23. The primary judge expressed concern about the evidence given by both parties and made findings as necessary, on the balance of probabilities, to quell factual disputes. The rejection of one party’s evidence in preference for another’s on one particular factual dispute falls way short of enabling a finding that the former perjured him or herself.
The parties’ hearsay evidence about what was said to them in passing by State magistrates in other proceedings could hardly carry any probative weight in proceedings before the primary judge. Her Honour noted the dispute over what had been said to the parties by State magistrates in the past and so, soundly, decided it was inadvisable to make definitive findings in the absence of transcript (at [231]–[232]). The mother failed to explain in the appeal why it was necessary for her Honour to have positively found the State magistrate made the comments to the father as she alleged. Passing comments were meaningless. The implications of any decision made by a State court would be evident from the face of its orders or reasons for judgment.
Failure to take a material consideration into account (Grounds 6 and 18)
The mother contended the primary judge erred at law by failing to take into account material considerations, namely her “anxiety due to a genuine belief” that the children had been abused by the father (Ground 6) and the relevant evidence pertaining to the risks of harm posed by the father to the children by reason of his family violence and neglect (Ground 18).
The findings about the mother’s allegations of family violence and neglect have already been addressed under Ground 23. Her Honour did not fail to take the mother’s evidence into account. Rather, the findings against the father for which the mother advocated were not made. That did not entail error.
Notably, the mother did not conduct her case contending that her honest belief in the risks of harm posed by the father was so pervasive that if, contrary to her proposal, orders were made for the children to spend unsupervised time with him she would collapse emotionally and be unable to cope, thereby compromising the children’s welfare (Sedgley and Sedgley (1995) FLC 92-623 at 82,259–82,260; Re Andrew (1996) FLC 92-692 at 83,200–83,203; A v A (1998) FLC 92-800 at 84,996–84,997). On the contrary, the mother eventually conceded in both cross-examination and final submissions that the children could regularly spend unsupervised time with the father. She made this final submission at trial:
[THE MOTHER]: … I have no intention of stopping the children seeing the – their father, if that’s what the court orders.
(Transcript 14 February 2018, p.180 lines 30–31)
Self-evidently, the mother anticipated she could ensure the children would spend unsupervised time with the father if ordered and it would not compromise her parenting capacity. She cannot run a contradictory argument in the appeal, let alone without evidence to support it (Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7; Water Board v Moustakas (1988) 180 CLR 491 at 497). Ground 18 also fails.
Erroneous orders (Grounds 24 and 28)
These grounds contend the primary judge erred by making two particular orders.
Orders 6(b) and 6(c) enable the children to spend time with the father in school holiday periods for longer than the four weeks of annual leave he can take from his employment and, since his ordinary work hours are between 4.00 am and 2.00 pm, the mother asserts he cannot look after the children satisfactorily and so the order was made in error (Ground 24).
The primary judge was aware of the father’s work hours (at [257]). It is merely the mother’s supposition that he cannot make suitable arrangements for the children’s care during school holiday visits when he is obliged to work. The primary judge found the father had not given sufficient thought to how he could replace the mother as the children’s primary carer (at [226]), but that is quite different from his capacity to arrange their care during only the school holidays when his annual leave does not coincide.
Order 21 requires the parties to “co-operate with each other regarding the children’s passports” and, since the mother alleges the father failed to co-operate with her over the passports shortly afterwards in January 2019, it is proof the order should not have been made (Ground 28).
The father’s alleged breach of Order 21 was the subject of a contravention application filed by the mother, entertained by the second judge in April 2019. The relevant count in the application (Count 10) was dismissed, which dismissal order is the subject of complaint in the second appeal. But importantly for present purposes, the second judge simultaneously discharged Order 21 and, unsurprisingly, that discharge order is not the subject of any complaint by the mother in the second appeal. The second judge said this on the topic:
76.Rightly or wrongly the issue about the children’s passports has been a recurring issue, at least for the [mother]. Although I have found her attitude to be self-defeating, I am nevertheless concerned to avoid, as far as possible, the parties returning to Court on this issue.
Ground 28 is therefore entirely otiose. Order 21 ceased to exist as at 5 April 2019 and there is no utility in now debating its efficacy over the four months preceding its discharge. Even in the absence of Order 21, the parties’ co-operation over the children’s passports is obligatory because they have equal shared parental responsibility for the children and the use of their passports for international travel falls within the definition of a “major long-term issue” concerning the children (s 4(1)) over which the parties must amicably confer with an honest intent to compromise (s 65DAC).
THE CONTRAVENTION APPEAL
The mother filed contravention applications against the father in January 2018 and March 2019, heard and determined by the second judge in April 2019. The alleged contraventions related to past orders made in December 2014, May 2017 and December 2018. One count was sustained, but the remainder were dismissed. No sanction was imposed upon the father in respect of the solitary proven contravention, which related to an order made in December 2014.
The ICL participated in the contravention hearing and the mother was ordered to pay the ICL’s costs of the hearing in the sum of $1,528. In addition, an order was made re-listing the matter two months ahead, in June 2019, for the mother to show cause why an order should not be made against her under s 102QB of the Act.
The appeal from those orders, in its last iteration, is contained within the Amended Notice of Appeal filed on 27 April 2020.
The mother’s Summary of Argument in this appeal commences with these introductory comments:
3.I seek that the Judges of the Full Court listen to the recordings of the hearings [the subject of the second and proposed third appeals] in this matter that are in the possession of the Court. It is crucial that the Justices listen to the unprofessional conduct of [the primary judge]…
…
5. … I state the findings of [the primary judge] are illogical and irrational…
Applications for the provision of, or alternatively the dispensation of the need for, transcript for the appeals were the subject of the first two interlocutory applications filed by the mother in the appeals in August 2019 and November 2019. Those applications were determined by procedural orders made by Kent J in December 2019 and January 2020, who ordered that the Registrar furnish the mother with the transcript in respect of the first appeal and, furthermore, facilitate the mother listening to the audio recordings of the hearings related to the second and proposed third appeals. Consequently, the material filed in the appeals excludes the transcript (and audio recordings) of the hearings which relate to the second and proposed third appeals.
The mother said she has listened to the audio recordings, as the orders of Kent J allowed, but she could only identify one section of the recording of 2 April 2019 (pertinent to this appeal) and one section of the recording of 10 June 2019 (pertinent to the proposed third appeal) at which points she alleged the recordings vindicated her vague complaint of the primary judge’s “unprofessional conduct”. We listened to the two identified sections of the recordings and do not accept the mother’s characterisation of the primary judge’s conduct as “unprofessional”. We went no further, since we have no obligation to trawl through the whole recordings looking for some other snippet of discourse which might have caused the mother’s disquiet.
Procedural fairness (Ground 7)
This ground alleged the primary judge erred by depriving the mother of procedural fairness, but the submission made in support of the ground simply referred to the Summary of Argument filed in the first and proposed third appeals, the contents of the three Notices of Appeal, and written submissions prepared by the mother on 9 June 2019.
Obviously, the bare contents of the Notice of Appeal could not illuminate this complaint. Nor could the Summaries of Argument prepared and filed by the mother in two other appeals concerning unrelated orders.
As for the written submissions dated 9 June 2019, they were prepared by the mother and furnished to the primary judge in support of her application to stay the appealed orders in the second appeal and to vacate the hearing listed before the judge the following day, which produced the orders which are the subject of the proposed third appeal. The written submissions are included within the Appeal Book. We have already explained why the mother’s application to adduce the submissions as further evidence in the appeal should be refused but, even as mere submissions, they say nothing at all about any alleged deprivation of procedural fairness at the hearing before the primary judge in April 2019. This ground must fail.
Errors of law (Grounds 2, 3, 5, 8, 9 and 11)
The errors of law contended by these grounds are all misguided.
Grounds 2 and 3 claim the primary judge erred by “not following the legislative pathway”. Given the mother’s prosecution of contravention applications relating to both parenting and property settlement orders, her Honour correctly noted the provisions of both Pt VII Div 13A and Pt XIIIA of the Act applied, depending upon whether or not the order allegedly contravened related to children (at [6]–[14]). Then, when separately dealing with the question of costs, her Honour noted the applicable statutory provisions (at [61]–[66] and [78]–[80]). No “legislative pathway” governed the procedural order which listed the matter two months ahead to determine whether an order should be made against the mother under Pt XIB of the Act.
The gist of the mother’s complaint seems to concern the costs order made in favour of the ICL because, it is contended, the reasons for judgment did not reveal “careful dissection” of the matters to be considered under s 117 of the Act, but the primary judge gave quite adequate consideration to the provisions of that section (at [78] and [80]). The reasons only needed to be brief, particularly when the costs order was for only $1,528.
Ground 3 additionally complains that the primary judge erred by “deeming business records as hearsay”, contrary to the provisions of s 69 of the Evidence Act. In dismissing Count 5 of the contravention application, the primary judge referred to emails sent by an agent in July 2017 as being “hearsay evidence” (at [36]). Presuming that the mother relied upon the emails to establish the truth of the representations contained within them, then the evidence was certainly hearsay. Whether or not the emails were then still admissible under the “business records” exception is beside the point because the primary judge found:
36.… Quite apart from that evidence being inadmissible, the [mother] has failed to establish that the [father] failed to provide the keys and remotes during the period alleged. In any event, I am satisfied that the [father] had a reasonable excuse for not doing so given the co-operation of a resident tenant.
So, even if the emails were admissible in evidence, they were not enough to sustain the contravention allegation against the father. Ground 3 fails.
Ground 5 contends the primary judge erred by fixing the “show cause” hearing two months ahead “despite the appeal already in place”. That must be a reference to the first appeal, filed in January 2019, because there was no other outstanding appeal when these appealed orders were made in April 2019. There was no reason, either in logic or at law, why the second judge should have refrained from fixing the “show cause” hearing when an appeal was pending from orders made by the first judge in December 2018. Without intending disrespect, the submissions made in support of this ground were unintelligible.
Ground 8 contended the primary judge erred by relying upon past “findings and curial decisions”, supposedly in breach of s 91 of the Evidence Act. The mother’s Summary of Argument did not usefully elaborate the complaint. Suffice to say, no error was made because her Honour did not rely upon any former “decision” or “finding of fact” to establish the existence of a contentious fact pertinent to the determination of the contravention applications. The primary judge simply recognised how two counts in the contravention applications had already been determined by another judge (at [2]), four more counts were dismissed because the mother could not establish a prima facie case (at [3]), and so the primary judge proceeded to determine only those counts which remained outstanding.
Ground 9 alleged the primary judge erred by accepting into evidence some undated emails tendered by the father. It is evident from the Appeal Book that three documents purporting to be emails sent by the father to the mother were collectively tendered as an exhibit during the hearing (Exhibit 3), but the exhibit list does not indicate by whom they were tendered and we do not have the transcript of the hearing before the primary judge in April 2019 to examine. Even if undated emails were received in evidence, the fact they were undated would not necessarily deprive them of admissibility.
Ground 11 alleged the primary judge erred by “treating the children’s disclosures as hearsay”, supposedly in breach of s 69ZV of the Act. Only three of the contravention counts related to parenting orders (Counts 8–10) and it was only those counts to which s 69ZV of the Act could apply, since they were prosecuted under Pt VII Div 13A of the Act. In discussing those counts in the reasons for judgment, the primary judge made no reference at all to “children’s disclosures”. The only reference to “hearsay” in the reasons for judgment related to the agent’s emails, relevant to another count (Count 5) prosecuted under Pt XIIIA of the Act, to which s 69ZV of the Act did not apply. Those emails have already been discussed under Ground 3.
Erroneous finding (Ground 1)
This ground alleged the primary judge erred by “making findings of facts [sic] not available on the evidence”. It was necessary to resort to the mother’s Summary of Argument to discern what findings of fact were the subject of her grievance. Unfortunately for her, none was identified.
The first submissions the mother made in her Summary of Argument in support of this ground were actually complaints about findings of fact not made by the primary judge, which she stated in these terms:
7.The Judge erred by failing to make a finding on the balance of probabilities that the Father by signing the Passport Applications in the way he did was an act of family violence.
8.The Judge erred by failing to make a finding of fact on the balance of probabilities that the [father] committed family violence and emotional and psychological abuse against the children by handing the Passport Applications back to them knowing they were invalid…
(Emphasis added)
Disputes over acquisition of the children’s passport applications were the subject of only two counts in the contravention applications (Counts 9–10). To prove the alleged contraventions, the onus fell upon the mother to demonstrate the father’s breach of two particular orders made in December 2014 and December 2018. If the breaches were proven, the onus fell upon the father to prove a reasonable excuse for the breaches. Count 9 was sustained against the father, but Count 10 was not. Clearly, no burden fell upon the primary judge to make factual findings about whether or not the father’s conduct amounted to “family violence” or “abuse” within the meanings of those terms respectively under s 4AB and s 4(1) of the Act, so no error was made.
Erroneous order (Ground 4)
This ground alleged the primary judge erred by making the costs order against the mother in favour of the ICL.
The mother submitted she was dissatisfied with the ICL’s performance in the substantive proceedings which resulted in the parenting orders made in December 2018, which are the subject of the first appeal, but that means nothing in this appeal.
The only relevant submission made by the mother in respect of this ground was that she did not request the ICL’s participation in the contravention hearing. In that regard, the primary judge said this in the reasons for judgment:
67.Pursuant to the order made by [the first judge] on 12 December 2018 the ICL is not discharged until 30 June 2019. Both Applications – Contravention included the name of the ICL as required.
…
72.The [mother] opposed any order for costs and submitted that the ICL was not a necessary party to the contravention applications. While that may be so, the ICL is to be treated as a party as the order for his discharge has not come into effect. Ultimately, the ICL’s assistance was not only of benefit to the Court but, importantly, he assisted the [mother]. Not only did he obtain passport applications over the luncheon adjournment, he assisted the [mother] and [father] in completing them so that the mother could leave the Court with them.
An ICL has a unique position, offering the Court the advantage of objectivity which the parties lack (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 203, 207 and 225–226). In this instance, the utility of the ICL was patent from the reasons for judgment. The costs order in the ICL’s favour was regular and this ground fails.
Failure to take a material consideration into account (Ground 10)
This ground alleged the primary judge erred by “overlooking relevant matters which are vital to the decision”.
The lone submission made in support of this ground was expressed in these terms:
28.… Tendency evidence. Past behaviour is a good indicator of future behaviour. The fact that the [father] had deliberately failed to sign the Passport Applications in the past despite assuring the Judge he would is a good indicator he deliberately failed to sign the Passport Applications again or in this case deliberately signed them incorrectly so they would not be valid to enable the children to obtain passports in accordance with [orders made in December 2018]…
Presumably, therefore, this grievance relates to the dismissal of Count 10 concerning the dispute which arose over the children’s passports in January 2019. This ground of appeal must be dismissed because the mother failed to identify what “relevant matters” were overlooked by the primary judge in finding the deficiencies in the passport application forms signed by the father were “not intentional” (at [57]), in which case his alleged contravention of the order was not proven (at [59]). In any event, with the help of the ICL, the passport applications were completed and signed at court on the day of hearing (at [58]), so the substance of the parties’ dispute was successfully resolved.
Decision clearly wrong (Ground 6)
This ground, contending the primary judge erred by “exercising… discretion to arrive at a decision which was clearly wrong”, must be dismissed because it is unsupported by any submission.
In any event, the decision made about the contravention applications was not discretionary in nature. On the available evidence, the decision was either right or wrong and no other grounds of appeal establish any error made in the disposition of the contravention applications.
While the decision to order the mother to pay the ICL’s modest costs was discretionary, nothing about the reasons given for that order suggests it was “clearly wrong”.
Other orders (Ground 12)
Although this is an appeal from orders made by the second judge in April 2019, this ground alleged the first judge erred in December 2018 by dismissing two contravention counts alleged against the father. The first judge decided those two counts should be dismissed when determining the substantive parenting proceedings between the parties (at [276]–[278]) and made orders accordingly. When the remainder of the mother’s contravention applications were heard by the second judge in April 2019, her Honour expressly noted the earlier disposition of those two counts (at [2]).
The mother’s grievance with the first judge’s dismissal of those two counts in December 2018 ought to have been the subject of a ground of appeal in the first appeal from the orders made at that time, but it was not. The grievance cannot be legitimately pursued in this second appeal. However, overlooking the technical procedural impediment, the mother’s complaint is without merit in any event.
The complaint is that the first judge erred by “failing to exercise jurisdiction” and by “failing to make findings” which accorded with the mother’s belief in the father’s contravention of the subject orders. First, the primary judge did exercise jurisdiction by determining the counts, so there was no failure. Secondly, her Honour explained the dismissal of the counts on the basis of her lack of satisfaction that the evidence proved the father’s intentional breach of the orders, or alternatively, that the evidence proved his reasonable excuse for the breach. No error is manifest merely from the mother’s disagreement with the decision made. Her misconception is evident from the submission she simply made in these terms:
31.… [The first judge] could and should have made the determination that the [father] breached those Orders on the evidence…
THE VEXATIOUS ORDER APPEAL
Although the mother did not initially appreciate the need, it is necessary for her to obtain leave to appeal from the s 102QB(2) order made in August 2019, because the appeal itself amounts to the institution of proceedings contrary to the terms of the injunction (Re SCVG (2020) 61 Fam LR 218 at [7] and [23]–[25]).
The grant of leave to institute fresh proceedings, in the form of the appeal, is governed by ss 102QE, 102QF and 102QG of the Act (Re SCVG at [25]).
The Act required the mother to file an affidavit containing certain information (s 102QE(3)), but she did not do so, evidently because she was unaware of the obligation. No power reposes within the Act enabling dispensation of the mandatory requirement to file the affidavit so, to cure the defect, the regional appeal registrar corresponded with the mother on 16 February 2021 pointing out the deficiency and inviting its rectification. The mother then filed an Application in an Appeal on 22 February 2021, formally seeking leave to appeal under Pt XIB of the Act, supported by an affidavit, thereby averting the prospect of the application for leave being summarily dismissed for want of compliance with the Act. The mother also sought the grant of such leave in the “Amended Amended Notice of Appeal” dated 19 February 2021 upon which she was permitted to rely.
Without pausing to remark upon whether the mother’s supporting affidavit evinces sufficient compliance with the requirements of s 102QE(3), her application for leave to bring the appeal must be refused under s 102QF(2) of the Act because the proposed terms of the appeal fall easily within the definition of “vexatious proceedings” found within s 102Q(1) of the Act.
Relevantly, “vexatious proceedings” are defined to include those “without reasonable ground”. Correctly, the mother acknowledged in her Summary of Argument that the question of whether proceedings are “without reasonable ground” is answered objectively. While she may subjectively believe her proposed appeal has merit, objectively, we do not. We consider the proposed appeal is pursued without reasonable ground, thereby fulfilling the definition of “vexatious proceedings”.
Although the proposed appeal lies from an injunction made against the mother under s 102QB of the Act, not a single proposed ground of appeal attacks the method in which any provision of Pt XIB of the Act was applied by the primary judge. The principal complaint in the Summary of Argument seems to be that the primary judge has made similar orders against other litigants and tends to do so too readily, which broad generality of course means nothing. The mother’s submissions try to explain why the s 102QB order should not have been made against her, but the bulk of her submissions betray pre-occupation with the correctness of the orders which are the subject of the first and second appeals. The proposed grounds of appeal bear remarkable similarity to the grounds advanced in the second appeal and the Summary of Argument repeats many of the submissions already made in the second appeal. The mother entirely failed to confront the question of whether her proposed appeal from the s 102QB(2) order is itself “without reasonable ground”.
The primary judge said this in the reasons for judgment:
24.Throughout the proceedings between these parties, the mother has filed five Contravention Applications alleging fifty-eight separate counts of contravention (only two of which were proven and no sanction was imposed for either). The mother has also filed ten Applications in a Case, which have been overwhelmingly unsuccessful. Of the six appeals instituted by the mother, three have been heard and comprehensively dismissed. One appeal was deemed abandoned when the mother failed to comply with directions. The remaining two appeals are yet to be heard. Sixteen judgments have been delivered. The mother has filed fifty affidavits, many of which are repetitive, verbose, and irrelevant. Many of the affidavits are lengthy, the longest comprising 641 pages.
25.In this matter there have been seventeen directions hearings, four case management hearings, eleven duty list hearings, fifteen days of trial and the hearing of three appeals. Of course, not all of this attention relates solely to proceedings instituted or conducted by the mother but it does demonstrate the overrepresentation of this matter in the courts; an overwhelming proportion of which relates to applications instituted by the mother.
…
83.At the show cause hearing on 10 June 2019, the mother was invited to identify within the vast material relied upon by her (some 1,652 pages), something which might assist her in resisting the making of a vexatious proceedings order. The mother declined to do so.
84.The material relied upon does not assist the mother. To the contrary, it serves as evidence of the mother’s overall conduct in filing and relying upon material that is largely irrelevant, repetitious, argumentative and inadmissible.
The accuracy of those observations, which only summarised the chronology of the proceedings up until April 2019, was not challenged by the mother in the voluminous material she filed in respect of this proposed appeal.
Ultimately, the primary judge reached this conclusion:
94.In this case, I have found that the mother has frequently instituted or conducted vexatious proceedings and her conduct causes me to find that there is a real risk of future vexatious proceedings being instituted by the mother if a vexatious proceedings order is not made against her. The mother has not demonstrated any insight into the nature or impact of her conduct.
Nothing said by the mother in support of her application for leave to appeal remotely tends to suggest the primary judge fell into appealable error and so leave to appeal from the order made under s 102QB(2) on 23 August 2019 should be refused.
COSTS
The regional appeal registrar ordered the parties to file and serve a schedule of costs at least seven days in advance of the appeal hearing if they anticipated making an application for costs at the conclusion of the appeal hearing. The mother did not file any schedule of costs. Nor did the ICL.
The mother was self-represented. The Full Court furnished her with the transcript for the first appeal, saving her that cost, and no transcript was procured for the second and proposed third appeals, so she had few, if any, costs to recoup. Neither the father nor the ICL opposed the mother’s appeal from the property settlement order made in December 2018, so the marginal success she enjoyed in that appeal cannot fairly sound in any costs order against them. The minor error of law was rectified in the appeal, so we do not consider the mother merits a costs certificate for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth) either.
Despite saying otherwise in his Summary of Argument, the ICL did not seek costs in relation to the dismissed parenting appeal.
I certify that the preceding one hundred and seventy-five (175) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Aldridge & Austin JJ. Associate:
Dated: 23 April 2021
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