DAUTRY & WEMPLE - [2018] FamCAFC 237

FAMILY COURT OF AUSTRALIA

DAUTRY & WEMPLE

[2018] FamCAFC 237

FAMILY LAW – APPEAL – CHILDREN – Where the primary judge did not make an error applying the principles in Rice v Asplund (1979) FLC 90-725 – Application of section 69F – Where the Court determined the trial judge failed to consider the limitations of the discretionary rule in Fahmi & Fahmi (1995) FLC 92-637 and Watson & Watson (2013) FLC 93-530 and wrongly applied the rule to parenting proceedings – Where the primary judge gave inadequate reasons for exercising the discretion under section 69F to stay the Application-Contravention – Where error of law determined – Appeal allowed in part – Where the Application-Contravention remitted for rehearing – Where no orders as to costs.

Family Law Act 1975 (Cth) ss 69F, 102QB(2), 94AAA(3)
Federal Circuit Court Rules 2001 (Cth) r 13.10

De Winter v De Winter (1979) FLC 90-605
DL v The Queen (2018) 356 ALR 197; [2018] HCA 26
Fahmi & Fahmi (1995) FLC 92-637
Leaway Pty Ltd v Newcastle City Council (No 2) (2005) 220 ALR 757; [2005] NSWSC 826
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Pettitt v Dunkley [1971] 1 NSWLR 376
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Warren v Coombes (1978) 142 CLR 531; [1979] HCA 9
Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25
Wemple & Dautry (No. 2) [2014] FCCA 2847
Wemple & Dautry [2017] FCCA 408

APPELLANT:

Ms Dautry

RESPONDENT:

Mr Wemple

FILE NUMBER:

CAC

1472

2013

APPEAL NUMBER:

EAA

2018

DATE DELIVERED:

3 December 2018

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney via video link with Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

19 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 June 2018

LOWER COURT MNC:

[2018] FCCA 1513

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

SOLICITOR FOR THE APPELLANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr James

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn Family Lawyers

Orders

The appeal is allowed in part.
Order 6 made by the Federal Circuit Court of Australia on 15 June 2018 is set aside.
The Application-Contravention filed by the appellant on 28 November 2017 is remitted for re-hearing before the Federal Circuit Court of Australia.
Otherwise, the appeal is dismissed.
No order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dautry & Wemple has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY VIA VIDEO LINK WITH NEWCASTLE

Appeal Number: EAA 93 of 2018
File Number: CAC 1472 of 2013

Ms Dautry

Appellant

And

Mr Wemple

Respondent

REASONS FOR JUDGMENT

Introduction

This appeal was heard by a single judge at the Chief Justice’s direction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
On 15 June 2018, a judge of the Federal Circuit Court of Australia made orders between the appellant mother and the respondent father about which the mother appealed in two respects.
First, the primary judge dismissed the mother’s application for revised parenting orders in respect of the parties’ child under Part VII of the Act. Her Honour did so in reliance upon principles espoused in Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”), holding the mother failed to demonstrate any material change in circumstances which would warrant revision of the existing orders about the child’s residence. The dismissal of the mother’s application left intact the parenting orders previously made by Judge Neville on 18 December 2014.
Second, the primary judge stayed the prosecution of the mother’s contravention application against the father for his alleged breaches of the existing parenting orders, pending her payment of an outstanding costs order which arose out of her failed appeal against orders made in earlier proceedings between the parties.
The mother’s appeal should be dismissed in the first respect but allowed in the second respect for the following reasons.

Relevant background

On 20 December 2013, in former proceedings between the parties under Part VII of the Act, Judge Neville made interim orders for the child to live with the mother and spend substantial time with the father. The mother successfully appealed the orders, but not before incurring a costs order in the sum of $6,500 for securing leave to appeal out of time. The costs order remains unsatisfied.
In those proceedings, on 18 December 2014, Judge Neville made final orders in respect of the parties’ child, which provided for the father to have sole parental responsibility, for the child to live with him, and for the child to spend time with the mother (Wemple & Dautry (No.2) [2014] FCCA 2847). Her appeal against those orders was dismissed with costs in December 2015. The costs order, later assessed in the sum of $30,547, remains unsatisfied.
The parenting orders made in December 2014 are not the subject of this appeal, but the following orders are contextually relevant to the appeal:
(a)The father has sole parental responsibility for the child (Order 1);
(b)The child lives with the father (Order 2);
(c)The child spends defined time with the mother (Orders 4-6), which includes alternate weekends (Friday until Sunday) and four hours on each alternate Thursday evening during school terms, portions of school holidays, and other special occasions;
(d)An injunction precludes the parties from changing the child’s place of residence from the “ACT/Suburb B area” without the other’s consent or a court order (Order 10);
(e)An injunction requires the parties to give 14 days’ notice to the other of any new address if they change their residence to a place outside the “ACT/Suburb B area” (Order 11);
(f)An injunction requires the parties to give the other advance written notice if they intend to travel out of the “ACT/Suburb B region” with the child (Order 18).
In July 2016, when responding to the father’s application for financial relief under the Act, the mother took the opportunity to apply for fresh parenting orders, but her application was dismissed on 16 March 2017 (Wemple & Dautry [2017] FCCA 408 at [106]-[123]). She applied to reverse the existing care arrangements for the child or, alternatively, expand the time the child would spend with her, but the primary judge found she had not proven any material change in circumstances to warrant revision of the parenting orders and so her application was dismissed pursuant to principles developed in Rice v Asplund.
Only a month later, on 11 April 2017, the mother filed an Application in a Case seeking that some orders previously made by Judge Neville in December 2014 concerning the child’s care during school holiday periods be “interpreted and clarified”. That application was dismissed on 31 July 2017.
In September 2017, the mother relocated her residence from the Australian Capital Territory (“the ACT”) to City Y, which move was precipitated by her older son (a child from a former relationship) accepting a tuition scholarship to attend a private secondary school in City Y. In breach of Order 11 of the December 2014 orders, the mother did not inform the father of her residential move, but he learned of it anyway.
The father’s solicitors then wrote to the mother on 12 October 2017, informing her that, in his view, because of her relocation, the existing orders “no longer provide appropriate arrangements” for the child. The letter also alleged the mother’s breach of the orders following her relocation and foreshadowed he would only make the child available to her in school holiday periods and for telephone communication. It was contended the father’s impecuniosity prevented him from approaching the Court to vary the orders, but invited the mother’s commencement of fresh proceedings if she disagreed.
On 28 November 2017, the mother filed an application for parenting orders seeking to reverse the child’s residence and to wrest sole parental responsibility from the father. Simultaneously, she filed a contravention application alleging the father’s numerous breaches of the existing orders by failing to ensure the child either spent time or communicated with her. The father responded by applying for (amongst other relief) the dismissal of the parenting application and the stay of the contravention application pending the mother’s payment of all outstanding costs orders in his favour.
The proceedings were listed before the primary judge in February 2018, at which time her Honour decided to determine the dispute “as a threshold issue” on the filed evidence and the subsequently filed written submissions. The appealed orders were pronounced and reasons were delivered on 15 June 2018.

Application of Rice v Asplund

Contrary to the mother’s submission, her application for fresh parenting orders was not summarily dismissed, since summary dismissal requires an interlocutory determination that the application has no reasonable prospects of success. Rather, her application was dismissed pursuant to the principle in Rice v Asplund, which dismissal results from the determination of the application on its merits and the finding that, on the available evidence, there is no justification to re-open litigation to contest existing parenting orders because the subject child’s best interests require that outcome (Poisat & Poisat (2014) FLC 93-597 (“Poisat”) at [18], [40]).
It was open to the primary judge to determine the mother’s application to re-open the residence dispute as a threshold issue (Poisat at [39]-[41]; Marsden v Winch (2009) 42 Fam LR 1 (“Marsden”) at [46]-[47]; Miller & Harrington (2008) FLC 93-383 (“Miller”) at [80]-[83]; SPS and PLS (2008) FLC 93-363 (“SPS”) at [81]) and, indeed, her Honour’s decision to do so was not the subject of any ground of appeal.
Grounds 1, 2, 6 and 7 relate to Orders 1 and 2, the effect of which were to dismiss the mother’s application and to leave the former parenting orders intact. The mother contended those orders were plainly unreasonable and manifestly unjust (Ground 1), resulted from the error of failure to apply the paramountcy principle (Ground 2), and resulted from the error of failing to find that there was a sufficient change in circumstances to warrant revision of the existing orders (Grounds 6 and 7).
The mother’s reference to the “paramountcy principle” is intended to be a reference to the statutory principle that, when making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). Indeed, the principle in Rice v Asplund is an embodiment of the paramountcy principle (see Poisat at [18]-[19], [40], [42]; Marsden at [55]; Miller at [101]; SPS at [81]) and so its invocation amounts to a determination that the child’s best interests demand the cessation of the litigation.
The mother contended the material change of circumstances warranting revision of the existing parenting orders was the father’s deliberate alienation of the child from her. She explicitly disavowed that her voluntary relocation to Sydney amounted to a material change of circumstance, since she intended to continue implementing the existing orders, despite the tyranny of distance between City Y and the ACT. Although the mother asserted the primary judge did not appreciate the nature of her case to that effect, she was mistaken, because it was expressly acknowledged by her Honour (at [36], [51]-[52], [71]).
The mother contended the father’s alienation of the child from her was demonstrated by his flagrant breach of the existing parenting orders following his solicitors’ correspondence to her on 12 October 2017. However, the father resumed compliance with the orders on alternate weekends (but apparently not alternate Thursdays) once she filed her application in November 2017 (at [53], [60]) and so the change of circumstances relied upon by the mother was largely only transient. After an interruption to the implementation of the orders of about four to eight weeks duration, the situation largely reverted to normal. By the time of the hearing before the primary judge, save for the mother’s changed place of residence and the father’s perception about her consequent inability to regularly see the child for a few hours on alternate Thursday evenings, the situation was as it had always been, so the primary judge concluded it would not be in the child’s best interests to re-open the dispute about her place of residence (at [89]-[91]). It therefore follows the primary judge did apply the paramountcy principle and the ground of appeal contending she did not (Ground 2) must fail.
The primary judge found the mother could not rely upon the same complaints she agitated in previous proceedings as constituting changed circumstances justifying the review of the child’s residence (at [36], [63], [71]). The mother must accept the correctness of that conclusion because it was not the subject of the appeal. Otherwise, the mother was unable to articulate why it was an error for the primary judge to conclude the father’s relatively brief failure to faithfully implement the existing orders in October/December 2017 did not amount to a sufficient change in circumstances to warrant another litigious contest over the child’s residence. As the father submitted, even though the mother disagreed with that determination, it was well open.
Nevertheless, the primary judge did err making some assumptions and findings, but they were not errors of any consequence. The primary judge found (at [37], [69]) the mother’s relocation to Sydney constituted a breach of the existing injunction (Order 10), but it was not a breach at all because the mother changed only her own residence; not the child’s. The child resides with the father (Order 2) and only spends time with the mother (Orders 4-6). The primary judge also presumed the mother would no longer be able to make herself available to the child on alternate Thursday evenings in the ACT (at [70]), but the mother intended to do so with the maternal grandmother’s help collecting the child from school on those afternoons. The primary judge’s imputation that the father was thereby entitled to cease adherence to the existing orders without recourse to the Court for their variation (at [38]) was wrong.
While the mother complained of those errors, she did not contend they influenced the decision. She could not because they did not. The mother maintained her voluntary change of residence did not constitute a change in circumstances, which the primary judge accepted to be correct, so whether or not her change of residence was wrongly found to be in breach of an existing injunction was beside the point. Similarly, the error about the mother’s future unavailability for the child on alternate Thursday evenings was of no effect. Her availability might be germane to any prospective application for alteration of the orders regulating the child’s expenditure of time with her, which opportunity the primary judge left open for the mother, but her assumed unavailability to the child on alternate Thursday evenings was not an error which influenced the retention of the child’s residence with the father. His brief non-compliance with the orders requiring the child to spend alternate weekends with the mother, even if arrogantly misconceived as she believed, was rectified before the matter was heard by her Honour. Mistakes of fact only impugn the decision if they are material (see De Winter v De Winter (1979) FLC 90-605) and these mistakes were not.
It must follow, the decision reached by the primary judge about the insufficiency of changed circumstances to justify revision of the existing orders about the child’s residence and parental responsibility was open and was not vitiated by error. Grounds 6 and 7 must therefore fail.
Importantly, the primary judge did not shut the mother out from contesting different orders regulating the time the child should spend with her, given her residential move from the ACT to City Y. The distinction between a variation of those orders and a much wider contest over reversal of the child’s residence was emphasised by the primary judge (at [32], [87], [90]). Her Honour left the door open for the mother to seek amended orders about the manner in which the child spends time with her (at [91]). As has been recognised, the principle in Rice v Asplund might not impede a short and narrow hearing of an application for a small alteration to parenting orders, but may properly prevent litigation over more far-reaching changes (see SPS at [83]).
The decision by the primary judge to leave open to the mother the prospect of only limited revision of the existing parenting orders deprives her of any scope to maintain that the decision was plainly unreasonable or manifestly unjust, in which event Ground 1 must also fail. The fact the mother did not want to amend the existing orders in only that limited respect did not bolster the prospects of her much broader application to change he child’s residence being entertained.

Stay of the Contravention Application

Grounds 3, 4 and 5 relate to Order 6, which stays the prosecution of the mother’s contravention application until she satisfies an outstanding costs order of $6,500 (excluding accrued interest) made in the father’s favour. The mother contended the order was the product of errors of law because she had no capacity to pay and the father had done nothing to enforce the order (Ground 3), it compromised the Court’s integrity and the administration of justice (Ground 4), and it empowered the father to breach orders with impunity (Ground 5). The mother’s counsel contended on the appeal that Ground 1 was also directed to Order 6, but conceded that ground would fail if the other grounds also failed.
Although the appeal did not challenge the legal premise upon which the stay order was made, it is important to identify the source of power before proceeding to determine whether the power was validly exercised.
The primary judge did not purport to make the stay order in reliance upon s 102QB(2) of the Act or r 13.10 of the Federal Circuit Court Rules 2001 (Cth), since the father did not contend the mother’s contravention application was frivolous, vexatious, or an abuse of process.
The order made by the primary judge to stay the prosecution of the contravention application was purportedly premised on both the principles discussed by the Full Court in Fahmi & Fahmi (1995) FLC 92-637 (“Fahmi”) and the application of s 69F of the Act.
The primary judge said:
20.In Wemple & Dautry [2017] FCCA 408 at [129]-[131] I set out the principles with respect to a stay of parenting proceedings and I incorporate what was said there into these reasons.
21.Further, section 69F of the Family Law Act 1975 (Cth) (“the Act”) provides:
“A court may proceed with the hearing of proceedings in relation to a child even though the person who instituted the proceedings has failed to comply with an order of the court or another court having jurisdiction under this Act.”
In the former judgment to which her Honour referred (at [20]), she relied entirely upon quotes from Fahmi.
In Fahmi, and again more recently in Watson & Watson (2013) FLC 93-530 (“Watson”) at [25]-[37], the Full Court discussed the existence of a court’s discretion to refuse to entertain an application brought by an applicant who is in contempt of orders made in the same proceedings. In contrast, as can be seen, s 69F avails of the discretion to entertain an application in relation to a child brought by an applicant who is in contempt of orders, regardless of when and in what proceedings the breached orders were made.

In purporting to apply both Fahmi and s 69F of the Act to the facts of this case, the primary judge made three errors. First, the operation of the Fahmi principle and s 69F are mutually exclusive in relation to proceedings brought under Part VII of the Act, as these proceedings were. Second, even if the Fahmi principle was capable of application, the pre-conditions to its application were not met here. Third, allowing for the application of s 69F, the reasons for the exercise of the discretion to stay the mother’s application were inadequate. Each of those errors requires elaboration.
For the Fahmi principle to apply so as to deny an applicant an audience before the court, the applicant’s contempt must occur in the same cause or proceedings then pending before the court (Watson at [36(e)]). No discretionary order was made to dismiss the contemnors’ applications in either Fahmi or Watson because, in each case, the relevant contempt was not committed in the same cause or proceeding (Fahmi at 82,428 – 82,429; Watson at [44]). In Fahmi, a divorce application was held to be a different cause of action from another cause between the parties in respect of property settlement and child maintenance. In Watson, an application to set aside consent property settlement orders under s 79A of the Act constituted different proceedings from the preceding property settlement proceedings, even though the relief in both sets of proceedings lay within Part VIII of the Act.
In this case, the mother’s alleged contempt related to her failure to satisfy a costs order made in the course of her failed appeal against interim orders made by Judge Neville in the proceedings which were concluded with final orders in December 2014. Accordingly, her contempt (even if her failure to pay those costs is capable of characterisation as contempt) was not of orders made in these proceedings, which were not instituted until November 2017. The fact the parties sought relief under Part VII of the Act in both sets of proceedings did not render the proceedings the same. Therefore, if the primary judge resorted to the discretionary Fahmi principle, it could not apply and her Honour was bound to entertain, not stay, the mother’s application. The primary judge’s failure to appreciate the limitation to the ambit of the discretionary Fahmi principle was an error of law which vitiates Order 6.
It would not matter that the error was not one encapsulated within the mother’s grounds of appeal. Where appealable error is detected, it should be remedied. If a trial judge was in no better position to decide the question than an appellate court or the trial judge was wrong, the appellate court must discharge its duty and give effect to its own judgment. When the law confers a right of appeal, the appeal should be a reality, not an illusion, so errors should be corrected (Warren v Coombes (1978) 142 CLR 531 at 552-553).
When alerted to that problem, the father’s counsel contended the decision to stay the mother’s application was justified by application of s 69F of the Act, but that contention depends upon both the proper employment and explanation of the discretionary exercise.
Section 69F (and in its former iteration as s 66) of the Act was enacted to abolish, in child-related parenting proceedings under Part VII of the Act, the common law rule discussed in Fahmi that applicants in contempt of orders should not be heard in respect of their fresh applications (Leaway Pty Ltd v Newcastle City Council (No.2) (2005) 220 ALR 757 at [53]-[54]). Section 69F had no work to do in either Fahmi or Watson because the litigation before the court in those two cases was not child-related.
Section 69F is intended to invest the court with broad discretion as to whether an application under Part VII of the Act, filed by an applicant who has failed to comply with a past order made under the Act, is entertained. Its initial purpose was to ensure that applicants would not be shut out from contesting orders in respect of children through operation of the common law rule, which operated as a strict rule with specific exceptions at the time s 69F was first enacted as s 66 of the Act. Now, as a consequence of Fahmi and Watson, the common law rule is applied more flexibly as a discretionary rule in this jurisdiction.
Nevertheless, despite ousting operation of the common law rule, when the discretion under s 69F of the Act is enlivened, its exercise is motivated by the same type of considerations discussed in Fahmi and Watson and depends upon the balance which must be struck between the applicant’s right to procedural justice and countervailing public policy considerations, the ambit of which is not confined (Watson at [36(g)]). Locking an applicant out of procedural access to a court and the consequent deprivation of the opportunity for substantive relief is a serious step and should not be lightly taken.
Although her Honour determined to exercise discretion to stay the mother’s application pending her satisfaction of the outstanding costs order (at [92]-[93]), in light of the evidence adduced and the competing arguments advanced in this case, the reasons given for that decision were inadequate to explain the resolution of the tension between the competing policy considerations. Relevantly, her Honour only said (at [93]):
I…reiterate my concern that the mother has once again disregarded the previous [c]ourt orders for costs in making no attempt to comply with those orders even in part. She is now in receipt of income of about $64,000 p.a. A number of the issues raised in the contravention application could have been avoided if the mother had filed an application to vary the spend time provisions…The [c]ourt has a discretion to stay the hearing of further applications in the same proceedings whilst the costs orders remain outstanding. The [c]ourt exercises its discretion to stay the contravention proceedings filed by the mother on 28 November 2017.
The primary judge did not refer to and therefore did not explain why other salient considerations did not attract more weight in the balancing process. For example: how could the mother pay the outstanding costs and revive her application when she deposed to her financial incapacity? Why did it not matter that the father had not attempted to enforce the costs order? Why did the non-payment of one old costs order in the sum of $6,500 matter, but the non-payment of a much larger, more recent costs order in the sum of $30,547 did not? Why did the father’s deliberate decision to cease compliance with the existing parenting orders not matter when that was the catalyst for the mother to file the contravention application? Why was it more important to ensure the mother paid $6,500 in costs than to ensure the father complied with orders enabling the child to spend time and communicate with the mother? Order 6 was a harsh remedy to ensure the payment of such an historic, modest debt and one is left wondering why.
Conceivably, had those considerations been discussed and explained, the result might still have been the same, but the failure to provide sufficient reasons is an error of law which taints the decision (see Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; DL v The Queen (2018) 356 ALR 197 at [131]).
The mother’s essential contention was that the primary judge’s discretion miscarried, but it is both impossible and unnecessary to analyse whether the exercise of discretion was defensible once it is clear the primary judge’s reasons do not satisfactorily reveal how and why the discretion was exercised in the manner it was.
The appeal should therefore succeed in respect of Order 6, which order should be quashed. The mother will then be free to prosecute her contravention application against the father, though she should not conflate the success of her appeal in this respect and the future success of her contravention application, the fate of which will be in the hands of the judge who hears the application.
The mother sought an order remitting her applications for re-hearing by a different judge if the appeal succeeds, but there is no apparent reason to exclude the primary judge from re-hearing the contravention application. None was advanced on the appeal. The errors of law do not, in isolation, require her Honour’s disqualification.

Conclusion and costs

The appeal will be allowed in part. Order 6 made on 15 June 2018 will be set aside and the contravention application remitted for re-hearing, but the remainder of the appeal will be dismissed.
There should be no order as to costs. The appeal was only partly successful and both parties professed similarly difficult financial circumstances.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 3 December 2018.

Associate:

Date: 3 December 2018