Duarte & Morse
[2022] FedCFamC1A 66
•18 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Duarte & Morse [2022] FedCFamC1A 66
Appeal from: Morse & Duarte [2021] FedCFamC1F 273 Appeal number(s): NAA 85 of 2021 File number(s): SYC 737 of 2014 Judgment of: AUSTIN, WILLIAMS & CHRISTIE JJ Date of judgment: 18 May 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Where an appeal is brought from the dismissal of the appellant’s contravention application – Notice of Constitutional Matter – Where the appellant asserts the invalidity of parenting orders made in 2017 and s 8 of the Federal Circuit and Family Court of Australia Act (Cth) – Where the appeal does not lie from the 2017 orders – Where no statutory invalidity is demonstrated – Bias – Where giving judgment adverse to the interests of a party does not mean the judgment was tainted by bias – Procedural fairness – Where not every departure from the rules of natural justice entitles the aggrieved party to a new hearing – Error of law – Where parenting orders only dictate the manner in which children should spend time with a parent, but do not conscript parents – Error established – Re-hearing – Application Contravention – Where the appellant alleges four contraventions – Where the contraventions are not made out – Where on re-hearing the same result is reached by a different route – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 64B, 70NBA
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5, Pt 2, Item 7
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9
Judiciary Act 1903 (Cth) s 78B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.13
Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
B & B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Duarte and Anor & Morse (2019) FLC 93-902; [2019] FamCAFC 93
Duarte & Anor v Morse [2019] HCASL 275
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Mena & Mena and Anor [2016] FamCAFC 85
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
Nevins & Urwin [2022] FedCFamC1A 57
R v Richards & Bijkerk (1999) 107 A Crim R 318; [1999] NSWCCA 114
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Trahn & Long (No. 2) [2008] FamCAFC 194
Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Wunscher & Licha [2008] FamCAFC 155
Xuarez & Vitela [2017] FamCAFC 139
Number of paragraphs: 77 Date of hearing: 6 May 2022 Place: Heard in Sydney, delivered in Newcastle The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 85 of 2021
SYC 737 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DUARTE
Appellant
AND: MR MORSE
Respondent
ORDER MADE BY:
AUSTIN, WILLIAMS & CHRISTIE JJ
DATE OF ORDER:
18 MAY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 20 April 2022 is granted.
2.The order made by the primary judge on 25 November 2021 is affirmed.
3.The Notice of Appeal filed on 15 December 2021 is dismissed.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, WILLIAMS & CHRISTIE JJ:
This is an appeal from the dismissal of a contravention application brought by the appellant against the respondent.
On 1 December 2017, parenting orders were made between the parties in respect of their three children under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Family Court of Australia (as the Court was then known). The appellant’s appeal from those orders was dismissed (Duarte and Anor & Morse (2019) FLC 93-902), as was her application to the High Court of Australia for special leave to appeal (Duarte & Anor v Morse [2019] HCASL 275).
Relevantly, the orders made provision for the respondent to have sole parental responsibility for the children and for the children to live with him, but for the children to only spend time with the appellant under certain constraints.
The appellant was restrained from allowing the children to have any form of contact with her then partner (“Mr Tolman”), she was restrained from approaching the respondent’s residence and place of work, and any time spent by the children with her was to be subject to professional supervision. The orders enabled the respondent, at his discretion, to later expand the time the children could spend with the appellant and/or to suspend the requirement for her supervision with the children.
It was common ground the appellant refused to submit to any supervised interaction with the children and so there has been no face-to-face contact between them since November 2015. The children are now aged 15, 11 and nine years.
However, the orders do enable the appellant and the children to communicate and, so far as the evidence goes, the appellant and the second child spoke by telephone in August 2021. The nature of their conversations prompted the appellant to seek the respondent’s permission for the second child to spend some unsupervised time with her, which request the respondent rejected.
The appellant believes the respondent’s refusal of her request breached the operable orders and so filed an Application-Contravention in September 2021, which was heard and dismissed by the primary judge in November 2021. The appellant appeals from the dismissal order.
Constitutional issue
On 3 February 2022, the appellant filed a Notice in the appeal pursuant to r 2.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), informing of her belief that the appeal raises Constitutional issues.
By an Application in an Appeal filed on 20 April 2022, the appellant sought leave to adduce in evidence her simultaneously filed affidavit to prove (in part) her service of the Notice of Constitutional Matters upon the Attorneys-General of the Commonwealth and each State and Territory, as s 78B of the Judiciary Act 1903 (Cth) requires. The application to adduce the evidence should be granted, but that is not to say the absence of such evidence of service would have been an impediment to the progress of the appeal. Absent evidence of service, this Court must only refrain from determining the appeal if it “involves a matter arising under the Constitution or involving its interpretation” (Xuarez & Vitela [2017] FamCAFC 139 at [8]–[12]). While the appellant may believe it does, we do not.
Before the appeal hearing properly began, the appellant indicated her knowledge of the stated case to the Full Court concerning the original jurisdiction of the Federal Circuit and Family Court of Australia (Division 1), but was unaware judgment had been delivered in that case shortly before (Nevins & Urwin [2022] FedCFamC1A 57). Upon learning that was so, the appellant sought that the appeal be adjourned, at least in part, so she may have the opportunity to read and file written submissions about the decision. Her application was refused. Nothing within the Full Court’s decision in Nevins & Urwin would assist the appellant’s arguments in this appeal and any contrary submission she saw fit to make would have to be rejected. The denial of the adjournment therefore caused no prejudice.
The appellant contended in the Notice that two Constitutional issues arise in the appeal: first, whether the parenting orders made in December 2017 are invalid “for want of Chapter III judicial power under the Constitution”; and secondly, whether s 8(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) is invalid?
The validity of the December 2017 orders is not in issue because this appeal does not lie from them. The appellant’s former appeal from those orders was dismissed, as was her application for special leave to appeal to the High Court of Australia. The Family Court of Australia was, and remains under its new name (s 9(1) of the FCFCA Act), a superior court of record and so the orders made by the judge of that court in December 2017 remain final and binding unless and until set aside on appeal or pursuant to prerogative writ (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 393; State of NSW v Kable (2013) 252 CLR 118 at [19], [32]–[33], [38], [41] and [56]–[57]).
Contrary to the appellant’s submission, the December 2017 orders were not annulled by the enactment of the FCFCA Act. The continuity of the orders was put beyond doubt by the statutory reforms declaring the legislative amendments do not affect the validity of anything done by the Family Court of Australia before the new legislative scheme commenced operation (Sch 5, Pt 2, Item 7 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)).
As to the second issue, s 8(1) of the FCFCA Act changed the name of the Family Court of Australia to the Federal Circuit and Family Court of Australia (Division 1) by providing as follows:
Federal Circuit and Family Court of Australia
(1)The federal court known immediately before the commencement day as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1).
That provision, and the broader intention of the statutory reform, was explained this way in the Explanatory Memorandum to the Federal Circuit and Family Court of Australia Bill 2019 (Cth):
Major features of the Bill
…
63.For constitutional reasons, the FCFC would be established as two courts, brought together in practice under a single, overarching, unified administrative structure. This would nonetheless allow for the continuation of the Family Court and the Federal Circuit Court with the collective personnel (other than Judges) of the existing Courts being brought together under the unified administrative structure of the new Court entity. It in no way would constitute either court absorbing the other, or either court being disbanded. The FCFC would become the single point of entry into the family law jurisdiction of the federal court system. The FCFC would comprise two divisions. FCFC (Division 1) would be a continuation of the Family Court. FCFC (Division 2) would be a continuation of the Federal Circuit Court. FCFC (Division 1) would deal only with family law matters, while FCFC (Division 2) would deal with both first instance family law and general federal law matters. The Bill would ensure that the Federal Circuit Court’s existing general federal law jurisdiction and fair work jurisdiction would be preserved in FCFC (Division 2).
…
Clause 8 – Federal Circuit and Family Court of Australia
18.Clause 8 provides that the Family Court of Australia and the Federal Circuit Court of Australia would continue in existence as separate courts, but renamed as the FCFC (Division 1) and FCFC (Division 2). The Bill is not intended to impermissibly abolish either court upon commencement of relevant provisions on the commencement day.
19.Subclause 8(1) provides that the Family Court of Australia would continue in existence as the FCFC (Division 1).
(Emphasis added)
In breach of r 2.13(2)(d) of the Rules, the appellant failed to explain in her Notice how it was contended that s 8(1) of the FCFCA Act is invalid, but the proposition of invalidity was developed in the appellant’s Summary of Argument in this way:
4.The Family Court of Australia was not an entity name or the trading name of any entity at the time the orders were made, and at the present time the Federal Circuit and Family Court of Australia is not a registered trading or entity name.
5.The statutory provision purported to create the Federal Circuit and Family Court of Australia (Div 1) does not use any verb importing the concept of creation. It uses the verb ‘is’, as if the Court always existed, yet the statute goes on to lay out a constitution for the Court as if there was not one previously. The concept of one Court with a certain statutory constitution continuing in existence as another Court with another statutory constitution makes no legal sense and is void.
(Appellant’s Summary of Argument filed 3 March 2022) (Footnotes omitted)
The submissions do not demonstrate statutory invalidity and are rejected. According to the plain meaning of the FCFCA Act and the accompanying Explanatory Memorandum, the Family Court of Australia was not abolished, but had its name changed to the Federal Circuit and Family Court of Australia (Division 1).
Grounds 3(b) and 4 – ostensible bias
These two grounds contend the primary judge’s conduct “demonstrated ostensible bias”, for which purpose the subject judicial conduct was particularised to be his Honour:
(a)falsely stating in the reasons for judgment that the mother claimed Mr Tolman was in North America (Ground 4); and
(b)stating, after the delivery of judgment, that the appellant’s Constitutional argument was without merit and judges are not obliged to address arguments which lack merit (Ground 3(b)).
To address these grounds it is necessary to understand the way in which the hearing unfolded.
In the affidavit filed in support of the contravention application, the appellant deposed:
7.On 17 December 2019 I excluded [Mr Tolman] from my home. [The respondent] was informed of this, and the reasons, in my Family Court affidavit affirmed 9 September 2020 at paragraphs [7]-[13], which was served on [the respondent] on 10 September 2020 by email.
(Appellant’s affidavit filed 17 September 2021)
Such evidence was unchallenged, as the hearing proceeded before the primary judge by the parties making submissions, without either party being cross-examined.
During the hearing, the appellant submitted this:
[THE APPELLANT]: … So in other words, let’s say I wrote to [the respondent], I said Mr Tolman is still living with us but he has got three months work on an oilrig in North America, then [the respondent] would consider whether it was safe to permit overnight contact in that three month period. … [The respondent] was clearly informed – and he hasn’t disputed my affidavit – that he had 20 months knowledge that Mr Tolman was not on the scene, won’t be on the scene, cannot be on the scene, barred from the scene.
(Transcript 25 November 2021, p.12 lines 12–15 and 21–23)
An ex tempore judgment was delivered once the submissions were complete, in which the primary judge said:
12.[The appellant] also says that to the extent that [the respondent] argues that she has not complied with the orders, and I will turn to that issue shortly, then [the respondent] is mistaken because whilst order 8 provides for supervised time, the “policy” as she described it, of order 8 was to protect the children, or prevent the children from having contact with Mr Tolman, and given that he now works in [North America], or did at the relevant times, there is no need for that policy to be carried forward. And so, the time between she and [the middle child], at least, is able to be extended, as it were.
…
14.So to order 11. Order 11 requires three things to occur before the obligation to give consideration to extending the time the children spend with [the appellant] to overnight time in her home arises. The first is that [the appellant] no longer resides with Mr Tolman. I accept, for the purposes of this application, that she no longer resides with Mr Tolman, and that [the respondent] has known that for some time. The second is that the father is satisfied that there will be no contact by the children with Mr Tolman. There is no evidence of his satisfaction about that. [The appellant] would say, presumably, that it should be inferred from the fact that Mr Tolman is apparently in North America, but that does not discount electronic communications. But that is a minor point.
It seems the primary judge did indeed mistakenly think the appellant had asserted Mr Tolman was in North America when she had only hypothesised his absence overseas to exemplify her point about how the orders ought to work.
However, these grounds assert the decision was vitiated by apprehended bias, not by a factual mistake. Of itself, the mistake could not rationally induce an apprehension in the mind of an objective bystander that the primary judge might not have brought an impartial mind to the resolution of the dispute, which is the relevant test (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344–345; Johnson v Johnson (2000) 201 CLR 488 at 492).
Honest mistakes do not reasonably arouse suspicion about judicial pre-judgment. That is particularly so in this case because, when deciding it, his Honour accepted the appellant’s evidence that Mr Tolman no longer lived with her and that the respondent would necessarily have been satisfied the children would have no contact with Mr Tolman (regardless of the reason why), thereby fulfilling the first two of three pre-requisites to trigger the respondent’s compliance with Order 11. No judicial bias could reasonably be apprehended when the mistake did not hinder the appellant’s prosecution of the application and had no bearing upon the outcome.
His Honour’s reasons do not show “pre-judgment” of the case as was contended, but rather embody the “judgment” actually required of the primary judge. Giving judgment which is adverse to the interests of a party does not mean the judgment was tainted by bias. The appellant may think the judgment is flawed, but even if it is flawed for other reasons, error simpliciter does not equate to bias – either actual or ostensible. Ground 4 fails.
Immediately after the primary judge’s delivery of ex tempore reasons, his Honour and the appellant had this conversation:
[THE APPELLANT]: Your Honour, you didn’t address my constitutional argument in relation to order 8 because the –
HIS HONOUR: Yes, I didn’t.
[THE APPELLANT]: Well –
HIS HONOUR: You’re quite right about that, [to the appellant], and I didn’t because the argument has absolutely no merit and a judge is not obliged to address meritless arguments. Is there anything else?
(Transcript 25 November 2021, p.17 lines 1–10)
The disagreement between the appellant and the primary judge about the sufficiency of the reasons is not objectively suggestive of bias. Importantly though, Ground 3 complains of only “ostensible bias”; not the lack of adequate reasons, yet the appellant used this ground as the platform to argue in the appeal about the insufficiency of reasons. She said in her Summary of Argument:
17.… It is not true that judges are not obliged to address meritless arguments. With the exception of irrelevant arguments - and His Honour did not suggest that the argument was irrelevant – judges must address all arguments and explain why they have merit or do not have merit, to the degree that justice is seen to be done (which is ‘the paramount duty of the courts in administering justice according to law’). The judge's behaviour was prejudicial, causing the fair-minded lay observer to fear that the judge might not be impartial and unprejudiced. Ground 3 succeeds.
(Appellant’s Summary of Argument filed 3 March 2022) (Footnotes omitted)
The submission is rejected. A judge is not required to mention in the reasons for judgment every fact or argument relied on by the losing party as relevant to an issue (Fox v Percy (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463–464; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136). Only the rejection of a substantial argument need be explained. Reasons need only usually identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge (DL v The Queen (2018) 266 CLR 1 at [32] and [130]–[131]).
The appellant’s Constitutional arguments were not substantial arguments in the determination of the contravention dispute, the rejection of which warranted an explanation in the reasons for judgment. The abject lack of merit in the appellant’s Constitutional arguments has already been addressed. The primary judge was not in error to reach the same conclusion. The omission of any reference to those arguments in the reasons for judgment could not reasonably arouse any apprehension of his Honour’s bias against the appellant.
The appellant’s citation of Wainohu v New South Wales (2011) 243 CLR 181 and R v Richards & Bijkerk (1999) 107 A Crim R 318 in support of her argument in the appeal about the insufficiency of reasons was misconceived. The first case concerned the invalidity of state legislation because it required judges, when making control orders against certain individuals, to act in a way which was repugnant to the inherent judicial function to give reasons for decisions. The case had nothing to say about the sufficiency of reasons. The second case concerned an appeal from procedural orders for the conduct of an upcoming criminal trial before a jury, in which the NSW Court of Criminal Appeal said nothing about the sufficiency of reasons given by a judge.
Ground 3(a)
This ground contends:
3.[The primary judge] (a) failed to consider, in his reasons, the mother's Constitutional arguments in relation to Order 8, in particular the institutional incapacity of a Chapter III Court to order a party to enter into a third party contract …
As can be seen, this ground purports to attack the probity of Order 8 made in December 2017 and is dismissed for the same reasons given in the prior discussion about the appellant’s Notice pursuant to s 78B of the Judiciary Act.
It would plainly be an abuse of process for this appeal from the orders made in November 2021 to be used as the vehicle to challenge the December 2017 orders when the validity of those orders was vindicated by the dismissal of the former appeal from them.
Ground 5
This ground contends:
5.[The primary judge] failed to consider exercising discretion to set aside or vary Order 8 to ensure that the policy of Order 11 would not be hindered in the future.
While the meaning of the complaint about the primary judge’s failure to exercise discretion is opaque, the argument made in support of it in the appellant’s Summary of Argument seems to be an entirely different complaint about the denial of procedural fairness.
In essence, the appellant submits she was denied procedural fairness at the end of the hearing because she was not given the chance to make an application for the discharge of Order 8 made in December 2017 pursuant to the power reposing in s 70NBA of the Act.
The argument, assuming for the moment it is one which can be properly advanced within the rubric of Ground 5, can be shortly rejected for two reasons.
First, s 70NBA(1) of the Act exists to enable the variation of a primary parenting order which is revealed to be deficient in some way during the contravention dispute between the parties; typically because it is shown to be ambiguous or to suffer from some form of lacuna. Here, the appellant did not envisage the “variation” of Order 8, but rather its wholesale discharge, which form of application falls logically beyond the purview of s 70NBA. The order requiring the children’s time with the appellant to be professionally supervised was obviously made for good reason in December 2017, which reason withstood appellate scrutiny at the time.
Secondly, even if s 70NBA(1) of the Act is so wide as to enable the discharge of primary orders, the appellant was not prejudiced by the deprivation of any chance to make the oral application at the conclusion of the hearing. She may still institute fresh proceedings under Pt VII, Division 6 of the Act seeking the discharge of Order 8 if she considers that there has been a material change of circumstances in the interregnum (Rice v Asplund (1979) FLC 90-725). Not every departure from the rules of natural justice entitles the aggrieved party to a new hearing (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).
Grounds 1 and 2 – legal error
Ground 1 asserts the primary judge erred at law by misconstruing Order 8 made in December 2017, in finding it required the children to spend supervised time with the appellant as a pre-condition to the respondent’s performance of obligations under Order 11.
Ground 2 is an alternate contention if Ground 1 fails, asserting the primary judge then erred at law by failing to find the appellant had “a reasonable excuse” for the breach of Order 8, meaning she was compliant with it and the respondent was not relieved of his obligation to comply with Order 11.
Order 8 made specific provision for how the children would spend supervised time with the appellant and commenced in this way:
8. The mother is to have supervised time with the children as follows:
…
(Emphasis added)
Order 11 then provides as follows:
11.In the event that the [appellant] no longer resides with Mr Tolman and the [respondent] is satisfied there will be no contact by the children with Mr Tolman and where the [respondent] is satisfied the [appellant] is otherwise compliant with the court orders, then the [respondent] is to consider extending the time the children spend with the [appellant] to overnight time in her home. If he offers to the [appellant] a change of the time the children spend with her to include overnight time and the [appellant] accepts unequivocally in writing the conditions upon which such offer is made, then such time is to continue until the [respondent] gives notice in writing that it is to cease.
As can be seen, Order 11 imposes three pre-requisites to the invocation of the respondent’s obligation to “consider” any alteration to the manner in which the children spend time with the appellant: first, the appellant must no longer reside with Mr Tolman; secondly, the respondent must be satisfied the children will have no contact with Mr Tolman; and thirdly, the respondent must be satisfied the appellant is otherwise compliant with the orders.
As already explained, the primary judge accepted the appellant proved fulfilment of the first two pre-requisites. As to the third, the appellant submitted the orders made in December 2017 do not create an enforceable obligation requiring her to involuntarily submit to supervised contact with the children.
She was quite right. The orders only dictate the manner in which the children will spend time with the appellant if she is prepared to permit it. If she refuses to allow the children to spend time with her under the conditions imposed by the orders, she can hardly be conscripted to do so (B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at [10.63]–[10.64]). That is because children are liable to experience a sense of rejection in the company of parents whose attitude betrays irritation at being forced against their will to allow the children to spend time with them, which is not conducive to the promotion of the children’s best interests.
As the appellant correctly contended, the primary judge erred at law by saying this about the effect of Order 8:
17.The next order, number 8, imposes an obligation on the mother. The obligation is to have supervised time with the children. The order is not optional. There is a thought in the community – and one sees it from time to time in this place – that orders that provide for children to spend time with the parent with whom they do not ordinarily live, is somehow optional – that is, it can be taken up by the parent at that parent’s option. But that is not so, as the text of this order show[s]:
The mother is to have supervised time with the children as set out.
18.The mother has not had that supervised time. The father’s argument is entirely and utterly correct. The occasion for the exercise of the obligation in order 11 to consider the course of action set out in that order has not arisen because the mother is non-compliant with the orders. On that basis, there is no prima facie case for the father to meet, and the application for contravention is dismissed.
(Emphasis in original)
As an aside, parenting orders make provision for the time which children spend with a person (s 64B(2)(b)); not the time the person spends with the children. The statutory emphasis is on the children’s entitlement rather than the parties’, but that is not the point of this ground of appeal.
His Honour relied upon the infelicity of expression used in the introductory words of Order 8 to wrongly conclude the appellant must spend supervised time with the children. By making that error, the primary judge then wrongly concluded the appellant was in breach of Order 8 by refusing to spend supervised time with the children and so such non-compliance then relieved the respondent from having to consider the relaxation of contact conditions.
In fact, the absence of any interaction between the children and the appellant under Order 8 was but an important factor the father should consider in deciding whether or not to grant the appellant’s request to spend unsupervised time with the second child.
It follows that the primary judge wrongly found the respondent was not required by Order 11 to consider whether the second child could spend unsupervised time with the appellant because she failed to prove her compliance with the December 2017 orders. Even though the appellant was refusing to make herself available for the children to spend supervised time with her, she was not in actual breach of any of the orders by doing so.
The appellant duly proved the pre-conditions to invoke the operation of Order 11 and so the respondent was bound to consider her request. His Honour was in error to find otherwise. Ground 1 must succeed and it becomes unnecessary to consider Ground 2.
Disposition
Ground 1 is sustained.
The appellant initially sought the remitter of her contravention application for re-hearing, but was instead willing for the application to be re-heard by this Court. It is well established that, when appealable error is demonstrated, the remitter of the proceedings for re-hearing should be the order of last resort (CDJ v VAJ (1998) 197 CLR 172 at 199), though it is an order commonly made when circumstances have or are likely to have changed between the hearing and the disposition of the appeal (Allesch v Maunz (2000) 203 CLR 172 at 183).
The parties must be given the opportunity to adduce further evidence before the re-hearing (Allesch v Maunz at 183 and 192), but there is none to usefully give. Despite the passage of time, nothing has changed concerning the historical contravention allegations. The evidence about them is now as it ever was. The appellant agreed this Court could re-hear the contravention application if satisfied of the existence of jurisdiction to do so, as we are for reasons already explained.
The appellant’s contravention application alleges four discrete contraventions of Order 11 by the respondent in August 2021. The affidavit filed by the appellant in support of the four counts comprised the totality of the evidence upon which she relied. The respondent does not challenge such evidence.
The unchallenged evidence led by the appellant either directly proves or warrants inferences being drawn that, at the relevant times, Mr Tolman no longer lived with her, and further, that the children would have no contact with him if they spent unsupervised time with her. As already explained under Ground 1, there was no basis for finding other than that the appellant was compliant with the December 2017 orders. The respondent was therefore obliged to consider the appellant’s request for the second child to spend some unsupervised time with her.
The appellant alleged the respondent contravened Order 11 by failing to consider her requests on four separate occasions, being:
(a)24 August 2021, between 11.13 and 11.21 pm (Count 1);
(b)26 August 2021, between 6.10 and 6.19 pm (Count 2);
(c)26 August 2021, between 6.19 and 6.32 pm (Count 3); and
(d)27 August 2021, between 10.27 am and 12.56 pm (Count 4).
The essence of the appellant’s case is that, on each occasion, the appellant impulsively refused her request without giving it “consideration”.
There is no evidence to support Count 2. The only evidence of events between 6.10 and 6.19 pm on 26 August 2021 is of a telephone conversation between the appellant and the second child. Although the respondent interrupted them to admonish the appellant for directly asking the second child whether he wanted to visit her, there was no refusal of any request for unsupervised time with the child. The appellant had not made such a request of him by that time on that day, so there was nothing to consider. Count 2 should be dismissed.
As for the remaining three counts, the evidence certainly shows the respondent refused the appellant’s requests. However, the appellant is in error to assume the respondent rejected her requests without prior consideration. The evidence readily supports the inference that the respondent did fulfil his obligation under Order 11 by considering the appellant’s requests.
The respondent was plainly aware the appellant’s requests were made in the context of the second child not having spent any time at all with her since November 2015 – nearly six years before. There was no controversy about that because the appellant admitted it. Inferentially, the respondent considered that the children’s re-introduction to the appellant should be gradual after the elapse of so much time. On the appellant’s own evidence, the respondent said to her in two separate emails:
Firstly you need to have a supervisor that is acceptable to the courts and me.
and later:
Firstly you need to spend time with the children under an appointed supervisor before considering spending time unsupervised time with the children.
The respondent was also concerned by how the appellant asked only the second child to spend unsupervised time with her. He was decidedly uncomfortable about how the other two children were being excluded from the proposed arrangement and how that may affect them all. The appellant concedes the respondent replied to her by email on 26 August 2021 saying:
Secondly you can’t have just one child but all three!
The appellant seemed not to appreciate how the children might be affected by her proposal for their differential treatment. She said in an email sent to the respondent the next day:
… it is outside the scope of your discretion to suggest that [the second child’s] time with me should be conditional on taking all three children at once, in circumstances where I have extended the invitation only to one. …
Moreover, the respondent was also concerned by how he perceived the appellant was exerting undue pressure upon the second child to accede to her desire for him to spend unsupervised time with her.
During the telephone call between the appellant and the second child on 26 August 2021, the respondent called out to the appellant:
You can’t ask [the second child] whether he wants to visit you
Then, in an email the respondent sent to the appellant later that same evening, he said to her:
Its not right to put this pressure on one child about child access.
The next day, the appellant sent an email to the respondent in which she said the following, from which her exertion of pressure is fairly evident:
I then asked [the second child] for clarification in respect of whether he would like to spend time with and/or visit me …
…
The context of my conversation with [the second child] made it clear that I was asking him to give me his opinion of what he would like to do.
…
…I am talking about [the second child’s] will freely expressed, not a purported will manipulated by you or anyone else.
The respondent replied by email saying this:
You rang with the purpose of only speaking to one child [the second child], then you harassed that child with the intent of getting him to say Yes to your suggestions without seeking permission from me.
The evidence demonstrates the respondent did consider the appellant’s requests before refusing them. His decision was inferentially motivated by these considerations: the estrangement of the second child from the appellant for nearly six years; the appellant’s unwillingness to gradually resume contact with the second child by starting with supervised visits, which graduation he thought was advisable; his perception that the appellant exerted pressure on the second child to agree to her proposal; and the appellant singling out the second child and treating him differently from the other two children. The evidence does not prove the respondent failed to consider relaxation of the supervision and so the appellant fails to prove the respondent’s contravention of Order 11 in each instance.
The appellant’s case about the respondent’s alleged refusal to consider her requests was encapsulated in the following assertion she made to him in an email:
…you have not considered my proposal…You made two emotional responses, not considerations.
Under order 11 you have a duty to “consider” granting [the second child’s] unsupervised overnight time with me. Due to the statutory framework, the word “consider” is to be interpreted with reference to [the second child’s] best interests, not yours. [The second child’s] opinions are relevant to the “consideration” that you are duty-bound to undertake. …
Those propositions are rejected. Order 11 invests the respondent with unfettered discretion to determine whether or not the rigors of Order 8 should ever be relaxed. In making that decision the respondent is not “duty-bound” to apply the provisions of Pt VII of the Act, though it would be expected he would make his decision with the children’s interests in mind. Evidently though, his views about how the children’s interests would be advanced might not correlate with the appellant’s. The statutory provisions only govern the determination of parenting disputes by judges and, in this case, that happened in December 2017.
The Application-Contravention is dismissed and there is no reason to vary the underlying parenting orders pursuant to s 70NBA of the Act, as the appellant sought.
Since we reach the same result as the primary judge, albeit by a different route, there is no point allowing the appeal. The order of the primary judge is therefore affirmed (Wunscher & Licha [2008] FamCAFC 155 at [50]; Trahn & Long (No. 2) [2008] FamCAFC 194 at [48]; Mena & Mena and Anor [2016] FamCAFC 85 at [136]).
Costs
Both parties were self-represented. Neither made an application for costs and so there will be no order.
I certify that the preceding seventy-six (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Williams & Christie. Associate:
Dated: 18 May 2022
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