FERANTI & CONNOR (CONTRAVENTION APPEAL)

[2009] FamCAFC 178

FAMILY COURT OF AUSTRALIA

FERANTI & CONNOR (CONTRAVENTION APPEAL) [2009] FamCAFC 178

FAMILY LAW – APPEAL – PARENTING ORDERS – CONTRAVENTION APPLICATION – Whether the trial Judge erred in accepting the mother’s evidence – Whether the trial Judge erred in finding reasonable excuse for contraventions – Where the trial Judge found the mother to be a witness of truth – Where the trial Judge was entitled to accept the evidence of the mother – Where significant weight was given to the fact that the mother’s actions did not demonstrate the necessary intent not to comply or failure to attempt to comply with parenting orders required by the Family Law Act 1975 (Cth) – No error by the trial Judge

FAMILY LAW – APPEAL – PARENTING ORDERS – CONTRAVENTION APPLICATION – BIAS – NATURAL JUSTICE – Where the father alleged bias against him by the trial Judge and denial of natural justice – Actual or apprehended bias by the trial Judge not established – Whether the father was denied procedural fairness or natural justice as a result of the extended duration of the hearing – Where the delay in the final determination of the application was substantially due to the mother’s serious ill health – Assertion of denial of natural justice not established – Whether the father was denied procedural fairness as a result of delay in delivery of reasons – Complaint without substance

FAMILY LAW – APPEAL – TRANSFER OF PROCEEDINGS – Whether the father was denied natural justice by the trial Judge transferring part of the proceedings without notice – Where each party was apprised of the trial Judge’s consideration of the issue and had the opportunity to make submissions – Claim without foundation – Where the trial Judge had power to make the transfer order under s 27A Family Law Act 1975 (Cth) – Whether the trial Judge erred in the exercise of his discretion by finding the father had the ability to travel – No appealable error established

FAMILY LAW – APPEAL – COSTS ORDER – Whether the trial Judge erred in relation to the parties’ financial circumstances – Where neither party had filed a Financial Statement – Where the trial Judge made it clear that he could give no weight to that factor – Where the father did not seek to file a Financial Statement or make submissions about his financial position – No merit to this challenge – Whether the trial Judge was in error in making an order on an indemnity costs basis in the absence of evidence of the basis on which the mother’s legal fees were charged – Where the cost agreement between the mother and her solicitors was not available to the trial Judge – Appealable error

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where material was contentious and/or irrelevant – Application dismissed

FAMILY LAW – APPEAL – RE-EXERCISE OF DISCRETION – COSTS – Where it is appropriate that the Full Court should re-exercise the discretion – Where the relevant contraventions were found by the trial Judge to be an abuse of process and were dismissed – Where the father was wholly unsuccessful – Where an order that the father pay the mother’s cost of those alleged contraventions on a lawyer and client basis is justified – Trial Judge’s orders amended

Family Law Act 1975 (Cth) – s 27A, Div 13A, s 70NAB, s 70NC (as in force prior to 2006 amendments), s70NE (as in force prior to 2006 amendments), s 70NEA (as in force prior to 2006 amendments), s 117(2A)
Family Law Rules 2004 (Cth) – r 1.10, r 1.12, r 10.12, r 10.14, r 11.17, r 11.18, r 22.22(2)

Bigg & Suzi (1998) FLC 92-799
Brott & Abeles (2007) FLC 93-310
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Hope & Maple [2008] FamCAFC 130
Johnson v Johnson (2000) 201 CLR 488
LGM & CAM (Contempt) (No 2) (2008) FLC 93-355
Livesey v New South Wales Bar Association (1983) 151 CLR 288
McCrossen and McCrossen (2006) FLC 93-283
Monie v the Commonwealth (2005) 63 NSWLR 729
NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470
R v Watson; Ex parte Armstrong (1976) 136 CLR 248
Rollings & Rollings [2009] FamCAFC 87
Tansell & Tansell (1977) FLC 90-307
Vlug & Poulos (1997) FLC 92-778

APPELLANT: Mr Feranti

RESPONDENT: Ms Connor

FILE NUMBER: MLF 10368 of 1994

APPEAL NUMBER: SA 106 of 2007

DATE DELIVERED: 30 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Adelaide

JUDGMENT OF: Boland, Thackray & Benjamin JJ

HEARING DATE: 4 March 2009

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 26 October 2007, 12 November 2007 and 13 November 2007

LOWER COURT MNC: [2007] FamCA 1446
[2007] FamCA 1447
[2007] FamCA 1708

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Mr Feranti appeared in person

COUNSEL FOR THE RESPONDENT: No appearance by the respondent.

Orders

1. That the appeal be allowed in part.

2. That Order 1(b) of the orders made 13 November 2007 be varied by deleting “on an indemnity basis” and substituting in lieu “on a lawyer and client basis”.

IT IS NOTED that publication of this judgment under the pseudonym Feranti & Connor (Contravention Appeal) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 106 of 2007
File Number: MLF 10368 of 1994

Mr Feranti

Appellant

And

Ms Connor

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Feranti and Ms Connor are the parents of T (“the child”).  The child is presently aged 14.  Her parents have been engaged in litigation in this Court for almost the whole of her life.  This appeal arose as part of the ongoing saga of litigation.  It is the father’s appeal against three orders made by Watt J in November 2007.

2. His Honour restrained the father from recording proceedings in the Court, dismissed a contravention application filed by the father, and made orders restraining the father from commencing any contravention or contempt proceedings without first having obtained leave of the Court.  His Honour also made orders that the father pay the mother’s costs of the contravention application, with costs associated with certain asserted contraventions to be paid on a party and party basis, and costs associated with other asserted contraventions (which his Honour determined had already been dealt with by the Court) on an indemnity basis.  His Honour, on his own motion, transferred all pending applications then before the Court in the Melbourne Registry (save for the assessment of costs of earlier proceedings) to the Adelaide Registry.

3. The mother’s solicitor wrote to the Appeal Registrar on 3 June 2008 and advised that the mother would not participate in this appeal, but would abide any order of the Court. 

4. Before us the father sought to rely on an application to adduce further evidence in support of his appeal.  In his Notice of Appeal, which was filed on 10 December 2007, the father sought, in the event the appeal was allowed, that we re-exercise the discretion and find the mother “guilty of the contraventions that were proved by the evidence that was presented” and that the mother “be held accountable for those contraventions”.  In the alternate, he sought that the matter be remitted for re-hearing.

5. At the hearing of the appeal the father clarified that he sought, in the event that we found appealable error by the trial Judge in transferring the substantive proceedings, including other pending interlocutory applications and his application that the child live with him, to the Adelaide Registry, we should simply discharge Order 2 of the orders made 13 November 2007 with the effect that the venue for the proceedings would revert to the Melbourne Registry.  At the date of the hearing before the trial Judge, and at the time of hearing the appeal, the father was living in Victoria and the mother was living at M a regional town in South Australia.

6. The father appeared on his own behalf before us and before the trial Judge.  The mother was legally represented before the trial Judge.  The child was not independently represented before the trial Judge.  She was represented in two other appeals brought by the father heard immediately prior to this appeal, however we excused counsel for the Independent Children’s Lawyer (“ICL”) prior to the commencement of this appeal.  The other appeals are the subject of separate reasons for judgment.    

7. We discern that the father’s complaints about his Honour’s reasons can be usefully broken down into broad topics as follows:

   ·    grounds attacking the exercise of discretion by the trial Judge in accepting the mother’s evidence of reasonable excuse in respect of acknowledged contraventions of orders for telephone communication with the child (or, as it was then referred to, telephone “contact”);

   ·    grounds asserting a lack of procedural fairness/denial of natural justice and apprehended or actual bias by the trial Judge during the course of the extended hearing, and specifically in respect of some of the contravention charges which his Honour dismissed summarily (we discern that the father also asserts that the time taken to determine the proceedings denied him natural justice);

   ·    an attack on the trial Judge’s determination to transfer the proceedings to Adelaide.  Integral to this challenge is the challenge to the “splitting” of the proceedings with the transfer of the child related proceedings to the Adelaide Registry and the costs assessment remaining in the Melbourne Registry;

   ·    a challenge to the costs orders made, particularly the indemnity costs order.

8. We propose to first set out some background information relevant to the parties and a brief history of the litigation in this Court.  We will then consider the grounds of appeal by reference to the topics we have identified above.  In the course of so doing, we will summarise the relevant parts of the trial Judge’s reasons for judgment.  As we indicated during the hearing, we will also consider the father’s application to adduce further evidence.

9. We note that the father did not direct any ground of appeal to the trial Judge’s order (Order 6 of 13 November 2007), which order restrains him from bringing further contravention applications without leave of the Court if the mother has substantially complied with orders and the father’s time spent with, and communicating with, the child has not been substantially compromised.

Background

1. The historical and litigation background is extracted from the trial Judge’s reasons, the appeal book and the chronology prepared by counsel for the ICL.  We did not understand there to be any controversy about that chronology, although we note the father disputed matters in the submissions of counsel for the ICL filed in respect of the father’s two other appeals.

2. The father was born in December 1957.  He is accordingly now aged 51 years.  The father is a computer programmer.

3. The mother was born in November 1960.  She is presently aged 48 years.  The mother was engaged in employment at the date of the hearing as a pharmacist.

4. The parties commenced cohabitation in 1987 and married in May 1988.  The child was born in March 1995.

5. The parties separated in December 1995 and proceedings were commenced in the Court for parenting orders on 16 May 1996.

6. On 10 December 1996 Hase J made orders (varying earlier orders made on 22 May 1996) that the father have contact (as it was then referred to) pursuant to the provisions of the Family Law Act 1975 (Cth) (“the Act”) with the child (who was then aged approximately 18 months) for short periods twice per week.

7. On 3 December 1999, after a five day defended hearing, in which the child was separately represented by a child representative (as the ICL was then known), Guest J made orders that the child live with the mother, and the father have contact with her each alternate weekend, half the school holidays and on some other special occasions.  Order 11 of his Honour’s orders discharged all previous orders relating to residence and contact.

8. On 2 February 2004 Brown J made orders which permitted the mother to change the residence of the child to South Australia and provided that the father have contact with the child during South Australian school holidays for one week in each mid-term holiday and for three weeks during the Christmas holidays.  Her Honour also provided that during school terms the father have telephone contact each Wednesday between 7.00 pm and 8.00 pm, and in the event the father was not exercising contact with the child on Father’s Day, the father’s birthday and the child’s birthday, he also have telephone contact on those days between 7.00 pm and 8.00 pm.  The telephone contact was subject to the provisos that the telephone contact be initiated by the child and that the father keep the mother informed of a telephone number to be used by the child to initiate the telephone contact.  For purposes of physical contact the mother was required to provide, at her expense, a return airline ticket for the child to travel between Adelaide Airport and Melbourne Airport, the mother to notify the father in writing of the date and time of travel and other travel details, and the father to notify the mother no later than two weeks prior to the commencement of the contact period that he intended to exercise the contact.

9. On 2 August 2004 Watt J made orders varying the conditions relating to the procedure for notification of travel arrangements.

10. On 4 February 2005 the father filed a contravention application.  That application was amended on 26 April 2005.  The father asserted:

    ·    34 breaches of Brown J’s order for telephone contact;

    ·    3 breaches of Brown J’s order requiring the mother to notify the father of travel arrangements for holiday contact;

    ·    9 breaches of orders of Hase J which restrained the mother removing the child from Victoria;

    ·    breach of property orders (including failure to deliver four chattels);

    ·    breach of an order for parental responsibility in failing to provide dental treatment for the child; and

    ·    3 breaches of orders of Guest J to provide details of the child’s medical treatment.

Grounds of appeal

1. The father’s grounds of appeal were essentially “generic” grounds of appeal and lacked specificity. His summary of argument as filed did not address particular grounds of appeal as required by Rule 22.22(2) of the Family Law Rules 2004 (“the rules”). At the hearing of the appeal the father orally advised us the ground or grounds to which numbered paragraphs in his summary of argument related.

2. In his Notice of Appeal, Part C, the father appeals orders made by Watt J on 12 November 2007 and 13 November 2007.  He annexed to his Notice of Appeal two orders made by Watt J on 12 November 2007.

3. As we have already briefly explained, the first order restrained the father from recording proceedings in the Court and required that any recording device in his possession remain turned off when he is in Court. 

4. The second order made on 12 November 2007 dismissed the father’s application for contravention filed 4 February 2005 as amended by his application for contravention filed 26 April 2005. 

5. The trial Judge’s orders of 13 November 2007 provided that the father pay part of the mother’s costs of the contravention proceedings on a party and party basis and the costs of other parts of the proceedings on an indemnity basis.  Order 2 of the trial Judge’s orders transferred all of the proceedings between the parties except the “taxation” (assessment) of costs proceedings to the Adelaide Registry of the Court. 

Asserted error by the trial judge in accepting the uncorroborated evidence of the mother and asserted error in findings of reasonable excuse for contraventions

1. The father relied on paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 of his written submissions in support of these asserted errors.  We will return to discuss specific parts of his submissions shortly.

2. The father included in the appeal book three judgments of the trial Judge published respectively on 26 October 2007 (“the first judgment”), 12 November 2007 (“the second judgment”) and 13 November 2007 (“the third judgment”). 

3. In his first judgment the trial Judge dealt with alleged contraventions in paragraphs 1 to 3 of Part D of the father’s application, and in his second judgment dealt with the remaining asserted contraventions in paragraphs 4 to 8 of Part D of the father’s application.

4. In his third judgment the trial Judge dealt with costs issues, and the change of venue.

Trial Judge’s reasons – the first judgment

1. Having set out his involvement with the extensive litigation in the matter, the trial Judge explained that the only orders relevant to the contravention application which he was about to determine were the orders made by Brown J permitting the mother to change the child’s residence from the suburbs of Melbourne to South Australia. 

2. The trial Judge noted, at paragraph 5, that the father had filed a contravention application which he had amended on 26 April 2005.

3. At paragraph 7 of his reasons, his Honour explained that paragraphs 4 to 8 of Part D of the father’s application contained “a significant number of allegations of contraventions of orders predating Brown J’s orders”.  He recorded that the mother had sought summary dismissal of those allegations, and he had indicated that he would make such an order.  He then explained:

   … The matter continued on 1 July, 26 July, 3 and 4 October 2005. At that point in the proceedings the father’s evidence had concluded but the hearing was clearly not going to be completed in the time then allocated to it.  (paragraph 7) 

4. His Honour then recorded how he had proposed relisting the matter but, by reason of the mother’s ill health, the matter had resumed on 3 and 4 August 2006.  His Honour noted the hearing concluded on 4 August 2006 when he reserved his decision.

5. At paragraph 14 of his reasons, the trial Judge, under the heading “Alleged contraventions of orders relating to telephone calls”, commenced his examination of the asserted contravention of Brown J’s orders.  Having set out the telephone contact order made by Brown J on 2 February 2004, part of which we will shortly reproduce, his Honour said, at paragraph 16:

   It can be seen that [subparagraph (A) of Order 3] requires [the child] to telephone her father, and it could be argued that the mother was not breaching anything if [the child] failed to make a call. No such defence was raised, however, on behalf of the mother, and the hearing proceeded on the basis that implicit in the order was an obligation on the mother to ensure that [the child] made the calls.

6. Brown J’s order provided that the father have contact with the child during school terms each Wednesday between 7.00 pm and 8.00 pm.  The order contained two provisos as follows:

   (A)telephone contact pursuant to this order be initiated by [the child] telephoning the [father]; and

   (B)the [father] keeping the [mother] informed of a telephone number to be used by [the child] to initiate the telephone contact.

7. His Honour went on to comment that it was obvious from reading Brown J’s judgment that her Honour believed the mother’s move to South Australia was imminent, and thus required new orders be made.  His Honour also highlighted the difficulty in strict compliance with the telephone contact order because the order did not, on its face, make it plain whether the time specified in the orders was a reference to Australian Eastern Standard time or Australian Central Standard time. 

8. The father’s reference to this order included his assertion set out, in paragraph 2 of his amended application, that on particular dates the mother failed to provide telephone contact with the child in accordance with the orders.  The charges as framed by the father included the following:

   … The respondent made no attempt to comply with the requirements of the order, and in fact deliberately prevented the child from making contact with the father.

1. The trial Judge then chronicled the 21 specific dates in respect of which the father alleged contraventions of the telephone contact order.  It is unnecessary for us to expand in any detail his Honour’s reasons for dismissal of the asserted contraventions on 4 and 11 February 2004 other than to note there was non-compliance by the mother as a result of her understanding that the orders were to come into effect after her move to South Australia.  Brown J acknowledged when the matter came back before her in February 2004 her mistaken understanding that the mother would immediately move to South Australia on the making of her Honour’s orders.  Further, the mother sought to have the father exercise contact with the child in Melbourne on the basis that old orders remained in place.

2. At paragraph 25, his Honour said:

   The allegations of contraventions on 4 and 11 February 2004 are dismissed. [Counsel for the mother] submitted that the father through this litigation was relentlessly pursuing the mother and was prepared, in this instance , to run totally unmeritorious allegations such as these, even after Brown J’s clear rejection of the father’s complaint to her about the same dates. There is much weight in this submission.  

3. Before proceeding to deal with other alleged contraventions, the trial Judge summarised the mother’s affidavit evidence about her encouragement of the child to telephone the father.  His Honour said:

   The mother in her affidavit filed 1 June 2005 at paragraph 5.4 states that she encourages the child to make the relevant telephone contact but there are occasions when [the child] forgets to ring, other times when she refuses to ring, and times when [the child] is going out and the mother has suggested that [the child] ring the father either prior to or after the scheduled time.  The mother also referred to other telephone calls made by [the child] to her father outside the scheduled times.  In her oral evidence the mother said she encourages [the child] to ring her father saying words like “Daddy would like to talk to you, to know what you are doing.” If [the child] says that she does not want to, this can lead to an argument and so now the mother leaves it and tries the next day. She said she often has difficulty with [the child] not wanting to do something, and [the child], on such occasions, can be defiant and become physically violent towards the mother. She therefore has not insisted (on [the child] making the call) on some occasions and says to [the child] that they will try on another day. On other occasions when [the child] has some activity that she wants to attend on the evening when the call should take place, the mother will encourage [the child] to ring before or after the appointed time. (paragraph 27)  

4. In the following paragraph the trial Judge indicated that he found the mother to be a truthful witness who made appropriate concessions.  But the trial Judge was critical of the father, finding that he made a wilfully false assertion to him.  His Honour said “[w]here there is conflict between the evidence of the mother and that of the father, I prefer the mother’s evidence” (paragraph 28).

5. In respect of the asserted contravention on 17 March 2004, the trial Judge found the contravention on that date admitted, but that the mother had a reasonable excuse, namely that the father had travelled to Adelaide the previous day and had seen the child at school (although there was no provision for him to do so in the orders).

6. In respect of the asserted contravention on 7 April 2004, the trial Judge found the child rang the father the previous day and spoke for approximately 45 to 46 minutes.  His Honour found the contravention admitted, but that the mother had a reasonable excuse.  He also accepted as true the mother’s evidence about the child’s behaviour in relation to being unwilling to call the father on the correct date, and that this behaviour had led to calls being made either before or after the appointed date.

7. In dealing with the asserted contravention of 5 May 2004, the father’s records were found to be inaccurate and the contravention was dismissed.

8. In respect of an allegation of contravention on 26 May 2004, the contravention was proved, but a reasonable excuse was found in that the child had rung the father the following evening and had a long conversation with him.

9. In considering the asserted contravention on 21 July 2004 the trial Judge explained that the child had telephoned the father on seven occasions during June 2004.  He then recorded the time the child had physically spent with the father in the July school holidays.  Again, the trial Judge found a reasonable excuse for the contravention.

10. In respect of the alleged contravention on 18 August 2004, the trial Judge accepted the mother’s explanation that the child was ill with tonsillitis and had gone to bed early.  He noted that the child had telephone contact with the father six days later for about 40 minutes.  Again, the trial Judge found the contravention proved, but that the mother had a reasonable excuse.

11. In respect of an asserted contravention on 25 August 2004, the trial Judge found, based on exhibits, the child had spoken to the father for 36 to 37 minutes.  We note here that the father did not include relevant exhibits in the appeal book, nor did he seek to tender such exhibits before us.  His Honour noted, at paragraph 43, that the father brought this contravention on the basis that he believed the orders required the duration of the telephone calls to be approximately one hour and the telephone call had not continued for that period.  His Honour went on to comment that the father had not raised this interpretation of the orders in any of his other contravention charges, and that in his final address the father conceded the order did not mean the call was to be of one hour’s duration.  His Honour dismissed the charge and found it should never have been alleged.

12. In respect of contraventions on 5 September 2004 and 8 September 2004, the trial Judge noted the mother’s evidence that the child had refused to telephone on Father’s Day but had spoken to the father on 12 September 2004 in four separate telephone calls totalling 65 minutes duration.  The trial Judge recorded the father’s evidence that the child had told him the mother had not allowed him to ring on Father’s Day.  His Honour also recorded the mother’s explanation that the child told lies to her father, including that the child said things to get him on side “by telling him things that will make him angry at the mother”.  The trial Judge accepted the mother’s evidence about the child’s behaviour.  Thus, the trial Judge found the contraventions established, but found there was a reasonable excuse in both cases.

13. The trial Judge made similar findings about contraventions on 15 September 2004 and 20 October 2004.

14. In relation to alleged contraventions on 3 November 2004 and 10 November 2004, the trial Judge found reasonable excuse in respect of the latter date when he accepted the child was at a school camp, but not the former.  Later in his reasons, the trial Judge, at paragraph 63 (which we will set out shortly), said that he was not satisfied the asserted contravention on 3 November 2004 was established. 

15. A contravention asserted to have occurred on 17 November 2004 was dismissed based on telephone records.  There was a telephone call on that day.

16. Dealing with an asserted contravention on 8 December 2004, the trial Judge explained the mother had asserted that her telephone records were missing.  The trial Judge said, at paragraph 63:

    … I accept that the mother does not have her records for those occasions. Where she does have her records, they frequently demonstrate a proximate call or calls that provide telephone contact between the child and her father. I am also uninclined to find these contraventions established in circumstances where the father accepted, within the same period of time, that if the mother’s records showed a call on 17 November, then he accepted that it was made, even though he had no record of it.

17. In dealing with an asserted contravention on 2 February 2005, the trial Judge found the contravention proved, but with a reasonable excuse, the child’s illness.

18. Turning then to deal with an asserted contravention on 2 March 2005, the trial Judge again found the contravention proved but with a reasonable excuse in that the child had called the father twice the following week.

19. Dealing with an asserted contravention on 9 March 2005, the trial Judge accepted the mother’s records, which established there were proximate calls on that day.  That asserted contravention was dismissed.

20. In dealing with an asserted failure to call on 6 April 2005, the trial Judge accepted the mother’s explanation that the child had refused to telephone her father and found the mother had a reasonable excuse.  At paragraph 74, his Honour said:

    Whilst I have found that there was a reasonable excuse in respect of these contraventions, many of which were admitted, I refer to paragraph 97 at the conclusion of my consideration of paragraph 3 of the father’s allegation of contravention and say that the overall pattern and duration of telephone calls made outside the time frame provided by the orders strongly negates the existence of the necessary intent not to comply, or failure to attempt to comply, that the Act requires.

21. From paragraphs 75 to 95 of his reasons, the trial Judge dealt with a number of asserted contraventions where it was not disputed that the child spoke to the father on the appointed date, when the call which was made was often a lengthy one, exceeding an hour’s duration on many occasions, but not made within the time prescribed in the orders.  The trial Judge found on 11 occasions calls were made outside the relevant time band.

22. At paragraph 97, his Honour said:

    The mother’s defence was that her general evidence about [the child’s] behaviour, referred to in paragraph 27 of this judgment, which I have accepted, reasonably explained and excused this unreliability as to times, and that the consistency with which calls were made, albeit outside the time band, and the duration of those calls, totally negated any suggestion that she had ‘intentionally failed to comply with the order, or made no reasonable attempt to comply with the order’ which I must find in order to find that she has contravened the order. 

23. His Honour concluded that he found the intent of the order had been achieved and that the mother’s encouragement of the child was self-evident from the fact the calls had been made.

24. At paragraph 100, his Honour explained:

    For these reasons, I am not satisfied that these out of time calls amount to contraventions, and even if I had been satisfied that they were contraventions, I consider that the [mother’s] evidence about [the child’s] strong willed behaviour, and how that may impact on the timing of calls, provides a reasonable excuse in the case of all these calls.

25. His Honour therefore dismissed all contraventions as alleged in paragraph 3 of the father’s amended contravention application. 

26. His Honour then turned to deal with alleged contraventions of the travel notice provision.  His Honour commenced his discussion of these asserted contraventions by setting out paragraph 4(b) of the orders made by Brown J on 2 February 2004.  It will aid understanding of his Honour’s reasons if we also set out that order:

    …

    4.For the purpose of contact pursuant to paragraphs 3(a) and (b) [contact during the school term holiday periods and school Christmas holiday periods] hereof:

    …

    (b)the [mother] notify the [father] in writing of the date and time of travel, the name of the airline and the relevant flight details not less than one calendar month prior to the commencement of each contact period;

    …  (paragraph 102) 

27. His Honour recorded that the father asserted in his application that in March 2004, June 2004 and March 2005 the mother failed to provide notification of travel arrangements for the child.

28. In respect of the asserted March 2004 contravention, the trial Judge recorded the relevant parts of the father’s affidavit where he asserted the mother had failed to provide details of the travel arrangements.  At paragraph 107 of his reasons, the trial Judge noted:

    Neither in his contravention application nor his affidavit does the father set out the date on which this period of contact was due to commence under the order of Justice Brown made 2 February 2004. 

29. The trial Judge then set out correspondence from the mother’s solicitor and the relevant portion of the mother’s affidavit evidence which was to the effect that the child had posted a letter to the father enclosing a Virgin Blue flight schedule.  His Honour accepted the mother’s evidence and dismissed the contravention.

30. In respect of the asserted June 2004 contravention, his Honour noted that the orders required travel details to be provided to the father by 2 June 2004.  Having set out the mother’s evidence that the child had posted the details on 22 May 2004 and reposted them on 25 June 2004 on learning the father had not received them, and the evidence which disclosed the mother made the airline booking on 5 March 2004, the trial Judge dismissed the contravention. 

31. His Honour then dealt with the asserted contravention in March 2005.  The trial Judge found the orders required the mother to have notified the father by 15 March 2005 of the travel arrangements.  The father asserted he did not receive the relevant information until delivery of a registered letter in his mailbox on 17 March 2005.  The trial Judge recorded the mother’s affidavit in which she deposed to posting a letter by registered post in South Australia on or around 12 March 2005 enclosing the Virgin Blue flight schedule.

32. At paragraphs 123 and 124 of his reasons, the trial Judge concluded as follows:

    123.I accept the mother’s evidence to the effect that she has been a day or two late with the notice provisions on some other occasions that she was asked about, but I am satisfied that generally, four weeks’ notice has been given and that this was what the mother thought was required for quite some time.

    124.In the case of the March 2005 contravention, it appears from the post mark that the mother posted the information on the day that the father should have received it. He received it two days later. Whilst it was clear that the mother had been in possession of the booking details for quite some time and could have sent it earlier, I am not satisfied that her actions on this occasion amounted to an intentional failure to comply or that she did not make a reasonable attempt to comply. Contravention dismissed. 

33. Under the heading “Other matters” the trial Judge summarised submissions made on behalf of the mother to him to the effect he should take into account the mother’s conduct in encouraging the child to telephone the father and ensuring face to face contact took place, particularly in light of the father’s attitude to the mother.  The trial Judge noted it was also submitted he should have regard to the fact that the mother paid all telephone and travel costs while the father paid virtually no child support.

34. His Honour thereafter set out a lengthy extract of the cross-examination of the father which included the following passage which his Honour emphasised:

    Yes.  You regard my client [the mother] as being beneath contempt, don’t you?---Yes, I do.  Yes, I do.

    Absolutely worthless as a mother.  Is that right?---They’re your words but I won’t disagree with them. [original emphasis] (paragraph 125)

35. His Honour recorded he was also asked to take into account the father’s attitude to the Court orders.  It was not in dispute the father had attended the child’s school on her birthday and flown with her on flights the mother booked to implement holiday contact with the father.  The orders of Brown J did not provide for contact of this type for the father.  In considering the father’s attitude to the orders, the trial Judge rejected the father’s interpretation of the orders and said that he, the father, knew his actions to be “wildly outside the scope of the order” (paragraph 128).

36. In dealing with school holiday contact, the trial Judge noted that the father had not adhered to commencement and conclusion times.  At paragraph 131, his Honour referred to the effect of the father’s attitude to the Court orders, explaining that his attitude created conflict for the child.  His Honour summarised his findings about the father’s attitude, at paragraph 134 of his reasons, and dismissed all the contravention allegations, noting that he would deliver judgment in respect of summary dismissal of paragraphs 4 to 8 of Part D of the father’s application in separate reasons.

Trial Judge’s reasons – the second judgment

1. At paragraph 3 of his reasons, his Honour noted that the mother sought summary dismissal of the allegations of contravention set out in paragraphs 4 to 8 of Part D of the father’s contravention application, on the basis each of them amounted to an abuse of process, being allegations which had been previously raised, or could have been raised, and which the mother asserted were intended to cause her expense and inconvenience. 

2. The trial Judge noted the father’s opposition to the summary dismissal was based on the fact that there had not been a contested hearing of the mother’s evidence in earlier proceedings (where the claims had been agitated).

3. In dealing with the summary dismissal application, the trial Judge explained, at paragraph 6:

   … Where the mother ventures into disputed areas of fact, I have disregarded those factual allegations and accepted as true the father’s assertions and relied only on those parts of the mother’s affidavit which purport to show that the father, in paragraphs 4 – 8 is raising issues that have already been ventilated, or which he has had ample opportunity to ventilate in earlier proceedings.

4. His Honour went on to further explain that the mother’s counsel had handed up a chronology of the proceedings, and a folder of documents containing documents relied on (which documents had been filed in earlier proceedings). 

5. His Honour then set out, under the heading “The law to be applied”, an extract from the Full Court decision in Tansell & Tansell (1977) FLC 90-307 in support of the proposition that the Court has power to dismiss an application it finds to be an abuse of process.

6. His Honour also set out r 10.12 and r 10.14 of the rules then in force. 

7. His Honour then proceeded to set out the alleged contraventions.  It is unnecessary that we record the details of each and every asserted contravention. 

8. The first group of asserted contraventions were said to be contraventions of the orders made by Hase J on 10 December 1996, and ranged in date from June 2001 to January 2004.  Hase J had made interim orders which restrained the mother taking the child outside the state of Victoria.

9. At paragraph 17 of his reasons, the trial Judge noted that orders which had been made by Guest J on 3 December 1999 had discharged all previous orders relating to residence and contact.  Thus, his Honour reasoned the interim order which restrained the removal of the child from Victoria had been discharged.  The trial Judge found, even if the restraint was on foot up until the date of Guest J’s orders, it could not have been said to have survived beyond that date.

10. The trial Judge then turned, under the heading “Prior hearings of similar allegations”, to deal with earlier unsuccessful attempts by the father to assert similar contraventions, namely that the mother had taken the child out of Victoria in 2001 and 2002.

11. At paragraph 29 of his reasons, the trial Judge concluded the restraining order made by Hase J was an interim order, that no final order was sought in like terms and that the interim order ceased to operate from the time of Guest J’s judgment, delivered on 3 December 1999. 

12. His Honour therefore found, at paragraph 32, the father’s allegations of contravention set out in paragraph 4 of Part D of his application amounted to a blatant and vexatious abuse of process.

1. Dealing with the next asserted contravention, the trial Judge noted the father asserted the mother had failed to make available a portable stereo system, wedding ring, half of the photograph collection and a microwave oven listed in a schedule to property orders made by Hase J on 10 December 1996.

2. Having set out the lengthy history of litigation of the parties’ property settlement, the trial Judge noted that, pursuant to orders made by Hase J on 16 May 1997, the father was afforded an opportunity to amend a response he had before the Court (to include an order dealing with chattels) and that he had failed to do so.  His Honour also recorded that Order 7 of the orders of Hase J injuncted the father from taking further proceedings other than in accordance with those orders.  Thus, the trial Judge found the father was given an opportunity to raise the chattels issue at that time but did not do so.

3. His Honour went on to note that Wilczek J had heard and dismissed on 2 September 2002 an application in which the father had again sought recovery of the four chattels.  The father had sought leave to appeal from that order which application for leave to appeal was dismissed by the Full Court.

4. The trial Judge concluded, at paragraph 48:

   In light of the Full Court’s affirmation of the continued operation of paragraph 7 of Hase J’s order made 16 May 1997, the father’s attempt to raise the same issues again in paragraph 5 of his application could not succeed and amounts to, in my view, another abuse of process of the most blatant kind.

5. His Honour then dealt with the next asserted contravention raised by the father, namely his allegation that the mother had breached orders made on 13 August 1996 by disposing of a 1977 Datsun 180B sedan on the basis that she had no right or claim to the vehicle. 

6. His Honour noted that the father had raised this allegation in his earlier application filed on 26 March 2002 seeking leave to issue a contravention application.  His Honour explained that the property orders made on 13 August 1996 had been varied by consent on 10 December 1996 and chattels to be retained by each party were specified in the schedule to that order.  His Honour said that the Datsun motor vehicle was not listed in the schedule, and thus concluded the mother could not be in breach of the orders.  He also noted that the father had filed an appeal to the Full Court asserting that he had been, by reason of the orders of Hase J of 16 May 1997, unfairly prevented from seeking compliance by the mother of previous Court orders.  The trial Judge noted the Full Court had dismissed the father’s appeal.

7. The next asserted contravention was the father’s allegation that the mother, who had orders for the long term welfare and development of the child, had refused or failed to provide dental treatment for the child. His Honour explained that an earlier similar application by the father for similar contravention proceedings had been dismissed by Wilczek J on 2 September 2002 and his application for leave to appeal had been dismissed by the Full Court on 19 March 2004. Having made a number of comments about the legal requirements imposed under the Act which flow from an order for sole parental responsibility, his Honour concluded that this part of the father’s application was also an abuse of process.

8. His Honour then turned to deal with the father’s assertion the mother had contravened the orders made by Guest J, in that he asserted she had failed to provide details of medical conditions suffered by the child.  The father asserted in June 2002 the mother had failed to provide details of eye testing the child required, and that in May and October 2002 the mother had failed to provide details of a medical condition the child was suffering and for which she required medication.

9. His Honour recorded the history of previous applications made by the father, including an application seeking leave to file a contravention application to deal with the “same allegations” which had been heard on an ex parte basis before Carter J on 12 February 2003 and dismissed.

10. His Honour concluded the father’s attempt to litigate this asserted contravention before him was an attempt to re-litigate a category of alleged contravention he had previously attempted unsuccessfully to institute before Wilczek J in 2002 and Carter J in 2003.  Further, his Honour noted that the obligation pursuant to the orders was for the mother to provide written reports as to any significant (our emphasis) medical condition that may arise, but not to give written reports or notification of any medical conditions.  Thus, his Honour concluded the allegation could not succeed, was an abuse of process and should be dismissed.

Asserted error by the trial Judge in the exercise of his discretion in accepting the mother’s evidence of reasonable excuse in respect of acknowledged contraventions of orders for telephone communication with the child

1. The father’s detailed submissions are summarised by him in paragraph 24 of his written submissions where he said:

   Some of the contraventions were admitted to by the mother, whilst others were proven by the evidence put forward by the father. It is submitted that the mother did not provide a reasonable excuse for the majority of those contraventions and had not made reasonable attempts to comply with the orders. Therefore the father’s application met the requirements of the relevant sections of the Family Law Act (1975) and the presiding Judge, on the evidence provided, was required to find the father’s allegations proven.

2. We note at this point the father’s written submissions, understandably, do not address asserted contraventions which were dismissed by his Honour as without foundation based on the telephone records.  We also think it appropriate to record that the trial Judge did find the majority of asserted breaches of the order for telephone contact proved, but that there was reasonable excuse.  Further, although the trial Judge did find some contraventions technically proved because telephone contact did not occur between 7.00 pm and 8.00 pm each Wednesday, his Honour found that the mother had not intentionally breached the order.

Relevant law - Div 13A of Pt V of the Act as in force

1. As we noted earlier, the proceedings had a protracted hearing before his Honour due substantially to the number of asserted contraventions the father sought to agitate and the mother’s ill health which necessitated a lengthy adjournment. Thus, the proceedings were heard during June, July and October 2005, prior to amendments to Div 13A of the Act in 2006, and resumed on 3 and 4 August 2006 after amendments to that division came into effect on 1 July 2006.

2. The asserted contraventions, the subject of the proceedings before the trial Judge, however, occurred prior to the significant amendments to Pt VII of the Act in 2006, including amendments to Div 13A. These amendments were therefore not relevant to the proceedings (see s 70NAB).

3. In his reasons the trial Judge set out s 70NC, s 70NE in part and s 70NEA as in force prior to 1 July 2006. Section 70NC provided as follows:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)  where the person is bound by the order—he or she has:

   (i)  intentionally failed to comply with the order; or

   (ii)  made no reasonable attempt to comply with the order; or

   (b)  otherwise—he or she has:

   (i)  intentionally prevented compliance with the order by a person who is bound by it; or

   (ii)  aided or abetted a contravention of the order by a person who is bound by it.

4. The meaning of “reasonable excuse for contravening an order” then in force was found in s 70NE.  It was in the following terms:

   (1)  The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (1A), (2), (3) and (4).

   (1A)  A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (1B)  If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (1A)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (2)  A person (the respondent) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if:

   (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (3)  A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:

   (a)  the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (4)  A person (the respondent) is taken to have had a reasonable excuse for contravening a specific issues order by acting contrary to section 65P if:

   (a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

5. The standard of proof to be applied in determining a contravention application at the relevant time was on the balance of probabilities, as was the standard of proof of establishing “reasonable excuse”.

Discussion

1. The thrust of the father’s challenge to the orders of the trial Judge in the majority of the paragraphs of his written submissions was the assertion that the findings of reasonable excuse made by the trial Judge were not available to him on the evidence. 

2. Although we have already set out in some detail the findings of the trial Judge, it is useful at this stage that we reiterate the trial Judge’s findings on credit.  These proceedings were conducted before the trial Judge over nine days and afforded his Honour the opportunity to extensively observe the parties in the witness box.  The trial Judge found the mother to be “truthful, forthright and willing to make appropriate concessions”.  He found the father’s credit was “seriously tarnished”.  Where there was a conflict in the evidence, the trial Judge preferred the evidence of the mother to that of the father.

Findings of reasonable excuse in respect of contraventions proved on:

(a)      4 February 2004 and 11 February 2004

1. In his written submissions the father asserted “[t]he mother was aware of the orders, understood the orders and made no attempt to comply with them.  No reasonable excuse should have been made out by the judge” (father’s submissions, paragraph 6).  In support of this submission the father relied on answers given by the mother in cross-examination.

2. A careful reading of the whole of the relevant portion of the transcript disclosed to us that the mother was aware of the orders and discussed them with her solicitors but she believed the contact arrangements would only need to change once she had moved to South Australia; that is, she acted in the belief the earlier orders were still in force.  Paragraph 22 of the trial Judge’s reasons makes it clear that the father had raised a complaint about the commencement of the orders before Brown J on 16 February 2004, and that her Honour had said the orders had been made by her on a mistaken belief that the mother was to move immediately to South Australia and she had not realised the mother would be resident for some time in Victoria.

3. We are satisfied the trial Judge was correct in accepting the mother’s excuse for not facilitating telephone contact between the child and the father on those two occasions in February 2004 when she was still resident in Melbourne, and there is no merit to this challenge of the father.

(b)    17 March 2004

1. The father asserted the trial Judge should not have accepted the mother’s evidence because it was not corroborated and further submitted “the fact that she may have only arrived in [South Australia] a couple of days earlier would not be a reasonable excuse” (father’s submissions, paragraph 9).  This submission ignored the important finding by the trial Judge, namely, that the father had travelled to South Australia the day prior to the alleged contravention and, without the benefit of an order which permitted him to do so, had attended the child’s school.  Further, his Honour accepted the mother’s evidence that the child said she did not want to call the father because she had seen him the day before.  The trial Judge’s findings of reasonable excuse were open to him on the evidence.

2. We find no merit in this challenge.

(c)    7 April 2004

1. The father again submitted, in respect of this contravention, where the trial Judge found reasonable excuse, that the mother provided no evidence to support her claim of the child’s behaviour or unwillingness to call.  It is unclear to us the type of corroborative evidence the father was suggesting the mother should have provided about the child’s statements.  We do not condone the practice, in which the father clearly had engaged, of recording his conversations with the child. 

2. We are satisfied that the trial Judge was entitled to accept the evidence of the mother, who he found to be a witness of truth, about the child’s attitude and behaviour.

(d)     26 May 2004

1. The father submitted the trial Judge erred in finding a reasonable excuse because the mother provided no evidence to support her claim of the child’s behaviour or unwillingness to call the father.  The trial Judge accepted the mother’s evidence that the child rang the day after the call was due and spoke to the father for over 55 minutes.  The father’s own material disclosed that the child told him she had not called the previous night because she “wasn’t feeling good”. 

2. We find no merit at all in the father’s submissions in respect of this asserted error by the trial Judge.

(e)    21 July 2004, 15 September 2004, 20 October 2004 and 10 November 2004

1. Similar submissions were made by the father in respect of the mother’s reasonable excuse in respect of the contravention on 21 July 2004 as were made in respect of the earlier contraventions.  We note that the trial Judge accepted the mother’s evidence that “when pushed” the child could become violent towards her.  His Honour accepted the mother’s evidence, as he was entitled to do, and found reasonable excuse after first finding that the child had telephoned the father on seven occasions during June 2004. 

2. The father made no submissions about contraventions found on 18 August 2004 or 5 September 2004, although the latter may be encompassed in his complaint about the trial Judge’s reasoning in paragraphs 51 to 54 (inclusive) of his first judgment.

3. The father also asserted (father’s submission, paragraph 13) the trial Judge was in error in accepting as a reasonable excuse calls made proximate to the telephone contact due on 15 September 2004 and 20 October 2004.  Not surprisingly, the father addressed no submission in respect of the contravention on 10 November 2004 when the child was attending a school camp, and had an “unscheduled” call with him four days later of approximately 55 minutes duration.

4. In summary, the father’s complaint in relation to these contraventions is that the trial Judge was in error in finding the mother had a reasonable excuse when calls were made proximate to the time provided in the orders, but not at the precise time and date specified in the orders.

5. Again his Honour carefully examined the mother’s assertions about the child engaging in behaviour of “playing off” one parent against the other by lying to the father or saying to him things which would make him angry at the mother. His Honour gave significant weight to the fact the mother’s actions did not demonstrate the necessary intent not to comply, or a failure to attempt to comply, that the Act required.

6. We note that s 70NE(1), which we earlier set out in these reasons, does not limit “reasonable excuse” to those matters described in subparagraphs (1), (1A), (2), (3) and (4).  Having regard to the evidence of the mother about the child’s behaviour, which the trial Judge accepted, and the lengthy and proximate calls which occurred between the father and the child, we discern no error in the trials Judge’s determination that the mother had a reasonable excuse in respect of these contraventions. 

7. In paragraph 16 of his written submissions, the father submitted:

   The judge is in error in paragraph 99 where he states “…the mother’s encouragement of the child is self evident from the fact that these calls have been made”.  It is submitted that there is no evidence to support the alleged encouragement of the child by the mother.  Further, the judge is in error when suggesting that “…the intent of the orders has been achieved”.  The orders of Brown J of 2 February 2004 are very clear and specific and need no interpretation.  They provide for regular, predictable and scheduled telephone contact between the father and child.  [original emphasis] 

8. In relation to the contraventions asserted in paragraph 3 of Part D of the father’s contravention application, his Honour did not find that the mother had complied strictly with the orders on 11 occasions.  His Honour found:

   ·    although calls were made outside the time band they were consistently made and were of ample duration;

   ·    that the mother had not intentionally failed to comply with the order, nor had she made no reasonable attempt to comply with the order;

   ·    the intent of the order had been achieved; and

   ·    the mother had encouraged the child to make the calls.

9. We are satisfied on the evidence before his Honour that these findings were open to him and his Honour was not in error in dismissing these charges. 

Father’s submissions in relation to alleged contraventions of the travel notice provisions

1. In paragraphs 18 and 19 of his submissions, the father submitted that his Honour should not have found reasonable excuse for the alleged contraventions of the travel notice provisions in light of his request of the mother’s solicitors and their reply to him.

2. In their letter dated 23 March 2003 to the father the mother’s solicitors responded as follows:

   … In relation to the travel arrangements for [the child] we are instructed that our client has had [the child] forward her travel inventory to you by way of a letter (in an envelope pre-addressed and pre-stamped by you) which was posted at the […] Post Office on the 8th March, 2004. … 

1. Again, we consider the trial Judge was entitled to accept the mother’s evidence, which was that the child had posted her travel itinerary to the father by delivering it to the same post office as his post office box on 8 March 2004.  We also discern no error by the trial Judge in accepting the mother’s evidence in respect of the June 2004 asserted contravention.  This was not a matter where the trial Judge found the contraventions proved, and proceeded to consider reasonable excuse.  His Honour found that the father had not, on the balance of probabilities, established the charges pleaded in the contravention.  The trial Judge relied on the father’s exhibit that the mother made the booking for the July holiday period in March that year, and he accepted the mother’s evidence that she had posted the travel itinerary to the father in time, and had also provided notification in June “in good time”. 

2. We discern no error by the trial Judge in his careful and thorough reasons in dealing with these contraventions asserted by the father.

Grounds asserting bias, denial of natural justice, delay in the delivery of reasons

1. These grounds appear to be directed substantially to his Honour’s second judgment.  We propose to deal with these grounds under two discrete topics:

   ·    the asserted bias by the trial Judge and the asserted denial of natural justice by the extended duration of the proceedings; and

   ·    error by reason of delay in delivery of reasons for judgment.

Asserted bias, denial of natural justice, and prejudice by reasons of the duration of the proceedings

1. The father, at paragraph 26 of his written submissions, submitted:

   … that paragraphs 34 to 77 [of the second judgment] fairly accurately illustrate the bias and prejudice that the presiding judge held against the father, and further illustrate the denial of justice that the father has suffered, which continued with the hearings before Watt J. … 

2. He further submitted:

   Counsel for the mother stated, on page 360 of the [appeal book], at line 17 that the mother was “…prepared to assume that she acted wrongfully in relation to the car within the meaning of the orders”, and at line 21 “…have assumed that in relation to the chattels as well…”, and the presiding judge states on page 361 at line 32 “…So the fact that she seems to be admitting it isn’t something you need to draw my attention to. For the purpose of this section I should assume that the facts as asserted by you are right”.  Watt J continued along the same lines as his judgment of 26 October 2006, on page 55 of the appeal book in paragraph 134 in which he plainly states that he was going to disregard any breach of court orders that the mother engaged in, and further, he would for all practical purposes simply turn a blind eye to her past, present and future breaches. [original emphasis] 

3. The father appeared to allege bias or apprehended bias on behalf of the trial Judge in the conduct of the proceedings on 3 October 2005.  In paragraph 41 of his written submissions, the father referred to the trial Judge spending “an unreasonable amount of time to favour the respondent and delay proceedings”.  The father was critical of the trial Judge for allowing cross-examination of him on the question of his residential address.  He asserted that over the course of the day the trial Judge “allowed a total of 21 pages of transcript on the issue of the father’s residential address”.

4. The father was also critical of the conduct of the trial Judge on 4 October 2005.  He asserted, in paragraph 48 of his written submissions, that the trial Judge had embarked “on a course to persuade the father to forgo the remainder of the contravention proceedings and agree to take part in mediation”.

5. The father was further critical of the trial Judge’s conduct of the hearing on 24 January 2006.  He asserted, in paragraph 52 of his written submissions, that the trial Judge had:

   … simply refused to accept the father’s statements regarding the untruthful conduct and statements of the mother and her representatives and did not provide the father with an opportunity to provide evidence to support his statements.

6. The father also asserted that the trial Judge’s comments, when he was seeking to amend the trial Judge’s order that the mother provide a medical report, showed his Honour’s “tendency to pre-judge the father” (submissions, paragraph 53).

7. In his conclusions in paragraph 56, the father asserted “the presiding judge was biased and prejudiced against the father and that he held and applied different standards of conduct and different standards of proof on the two parties”.  The father repeated a number of earlier allegations concerning the mother’s evidence and concluded:

   He [the trial Judge] disregarded the legislation, and the evidence, in both the process and the decisions of the application.  The father was denied justice and procedural fairness and therefore in all considerations the judges [sic] decisions cannot stand.

8. Among the authorities cited by the father were the decisions of the High Court in R v Watson; Ex parte Armstrong (1976) 136 CLR 248 and Livesey v New South Wales Bar Association (1983) 151 CLR 288.

9. The principles in relation to apprehended or actual bias in respect of a judicial officer are well known.  In Johnson v Johnson (2000) 201 CLR 488 the governing principles are set out in the judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492-493 as follows:

   11.… It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

   12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.

   13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.  [footnotes omitted]

Complaint about paragraphs 34 to 77 of the trial Judge’s second judgment

1. It is unnecessary that we repeat all that the trial Judge said in these paragraphs.

2. It appears from the father’s submissions that he asserts the trial Judge, in summarily dismissing his applications, should have taken into account the mother’s evidence, particularly her position in relation to the Datsun motor vehicle which her counsel referred to before the trial Judge set out above in our extract of the father’s submissions.  With respect to the father, it is clear that he fundamentally misunderstood the trial Judge’s direction to the mother’s counsel.  His Honour was obliged to, and did, deal with the application according to established principles – taking the father’s evidence at its highest and disregarding the mother’s evidence (see Bigg & Suzi (1998) FLC 92-799).

3. We have already earlier in these reasons referred to his Honour’s findings in his first and second judgments.  In summary, his Honour found that certain claims the father sought to agitate were an abuse of process, being proceedings which had either been previously litigated, or which the father had been given an opportunity to litigate, and had failed to take up that opportunity.  These findings were well open to the trial Judge on the evidence before him, particularly the documents presented by the mother’s counsel.  We discern no actual bias or lack of procedural fairness to the father in his Honour’s reasons or, as we will shortly more fully explain, during the conduct of the extended trial.

4. A careful reading of the trial Judge’s reasons disclose that his Honour thoroughly examined each and every complaint raised by the father.  His Honour recorded the history of the complaints agitated in Court on prior occasions before reaching his determination that the father’s attempt to re-litigate the claims was an abuse of process.  We discern no error by the trial Judge nor any apprehended or actual bias by him in the paragraphs complained of by the father.

Hearings of 29 June 2005 and 30 June 2005

1. It is pertinent to note that the gist of the father’s complaint of lack of procedural fairness on these two days was that the proceedings were unduly protracted given that the matter was being dealt with as one for summary dismissal.  Our reading of the transcript discloses that his Honour, in accordance with authority, assisted the father as a self-represented litigant by providing him with a relevant copy of the rules dealing with summary dismissal, and drew the father’s attention to the decision of the Full Court of Vlug & Poulos (1997) FLC 92-778 (transcript, 29 June 2005, p 4).

2. Earlier in the proceedings, on 29 June 2005, when the mother’s solicitor explained he proposed to seek summary dismissal of the earlier asserted contraventions, the father complained that the mother’s solicitor was engaging in delaying tactics.  The trial Judge explained to the father he had allowed the mother’s counsel to carefully refer to each claim by reference to the Court documents,  and then said:

   … I do propose to allow him to do what he asks to do now because in fact it ensures that you hear everything that is going to be said in defence of your allegations and have an opportunity to respond to it. (Transcript, 29 June 2005, p 9)

3. Later, his Honour advised the father he should listen carefully and make notes so that he could respond to the submissions made on the mother’s behalf. 

4. The father’s submissions have to be examined in the context of the complaints asserted in the father’s contravention application which, in paragraph 4 asserted nine separate contraventions, in paragraphs 5 and 6 asserted that orders in respect of chattels had been breached on two occasions, in paragraph 7 asserted at least one breach of orders of Guest J and in paragraph 8 asserted three breaches of Guest J’s orders.

5. Our reading of the transcript disclosed that his Honour was required, for the purpose of understanding the numerous asserted contraventions, to have regard to previous orders and judgments, both at first instance and of the Full Court.  His Honour outlined the procedure he intended to follow and permitted the mother’s counsel to explain, by reference to the relevant documents, why the father’s asserted contraventions were an abuse of process and should therefore be dismissed summarily.  His Honour then afforded the father a significant amount of time, both on 29 June 2005 and during the morning of 30 June 2005, to rebut the submissions made on the mother’s behalf.  Our reading of the transcript disclosed that his Honour had concluded well prior to the luncheon adjournment on 30 June 2005 that paragraphs 4, 5, 6, 7 and 8 of the father’s amended contravention application should be dismissed (transcript, 30 June 2005, p 138).

6. Given the complex nature and number of asserted contraventions which the father sought to agitate, and the care the trial Judge undertook to ensure the father as a self-represented litigant understood the process, it is readily understandable that this aspect of the proceedings took approximately one and a half days. 

7. Contrary to the father’s submissions that the delay caused a denial of justice to him, we are satisfied that his Honour meticulously dealt with each and every contravention asserted by the father in paragraphs 4 to 8 of his contravention application, and afforded him exemplary procedural fairness, including enabling him to expound his submissions by reference to relevant documents and transcript, prior to reaching his conclusion that those paragraphs of the father’s amended application should be summarily dismissed.

Hearing of 3 October 2005

1. As we have previously noted, there was a lengthy delay in the final determination of the contravention application substantially because of the mother’s serious ill health.  But it is also clear from reading the transcript of 3 October 2005 that the matter was delayed on that day, first, as a result of the father’s application to play in Court a recording he had made, without the child’s knowledge or consent, of his telephone conversations with her.  Second, the matter was somewhat delayed because the trial Judge was the Court’s emergency after hours judge, and had to deal with at least one interstate matter from a state where it was a public holiday.

2. The question of the father’s residential address arose at 12.15 pm when he was being sworn in as a witness (transcript, 3 October 2005, p 268).  The trial Judge offered the father an opportunity to give any legitimate reason why he should not disclose his residential address.  After no such reason was advanced the trial Judge required the father to give his occupation and residential address.  When the trial Judge directed the father to disclose his residential address the father said “I don’t believe it’s relevant to the proceedings” (transcript, 3 October 2005, p 272).

3. Later the following exchange took place:

   [Mr Feranti], I’ve made a direction that you state your residential address.  Do you propose to comply with that direction?---With great respect, sir, no.

   Well, [Mr Feranti] - - -?---I am willing to provide it to you, but not divulge it to Mr Wood or his client.  I’m willing to divulge it to the court, but not to Mr Wood or his client.

   For the purpose of enable [sic] this hearing to proceed, but making it quite clear that that isn’t necessarily an end of the matter at all, [Mr Feranti], I’ll direct that you furnish to the court your residential address in writing now? (Transcript, 3 October 2005, p 272)

4. Thereafter, counsel for the mother intervened.  The mother’s counsel submitted that the father should either abide by the trial Judge’s direction or his applications be dismissed for want of prosecution.  His Honour pointed out to the father that the mother, as the person responsible for the care and control of the child, was entitled to know where the child was being taken during contact. 

5. The following exchange then occurred between the father and the trial Judge:

   Now, I’m trying to reason with you, [Mr Feranti], I’m not obliged to.  I simply am obliged to rule on an application that’s been made to me, but I’m trying to give you an opportunity to consider your position if you want your contravention application to move forward now?---I do wish to move forward, yes, sir.

   Yes?  Then you will state your present residential address?---I will give the address that they’re aware of, yes, sir.

   [Mr Feranti], either state it on the record by speaking it now so that it is recorded and it appears on the transcript or I will turn to Mr Wood’s application. Do you understand that?---Yes, sir. (Transcript, 3 October 2005, p 275)

6. After further warnings by the trial Judge his Honour said to the father:

   So I’m dealing with a very serious matter and I’m trying to give you every opportunity not to put yourself in a hole, if I can put it that way?--- Yes.

   Do you say on oath that your residential address is [asserted address] ?---Yes. (Transcript, 3 October 2005, p 276)

7. We consider any delay occasioned in the proceedings up to that point was a result of the father’s obfuscation and his failure to comply with a direction properly made by the trial Judge.

Hearing of 4 October 2005

1. Our perusal of the transcript of 4 October 2005 disclosed that the father was cross-examined during the majority of the morning.  Shortly prior to the luncheon adjournment the mother’s counsel raised the issue of the mother’s availability.  The following exchange took place between the trial Judge and the mother’s counsel:

   MR WOOD:  That’s this: my client’s availability is somewhat limited.  I’ve taken instructions in relation to that on this basis, she has – this explains the slight lateness of the filing of her most recent affidavit – she, in early September was operated on for breast cancer and had her breast removed at that stage.  She will need to return to Adelaide urgently for treatment with respect to that.  Her future attendance is somewhat problematic.  I’m seeking to take some more precise instructions with respect to that.

   HIS HONOUR:  Yes.

   MR WOOD:  But regretfully she’ll be unavailable tomorrow because she has to return to Adelaide for the purposes of that treatment.  I just raise that flag at this stage, and we’ll have to take further instructions from her expert advisers as to availability for future attendance, but I just flag that now, your Honour.  As I say, I’ll seek to make some further inquiries so I can make further indications to your Honour.  (Transcript, 4 October 2005 pp 387-388)

2. Having been given that information, and also reminding himself that the father was pursuing an application that the child live with him and the mother sought orders that there be no contact, his Honour raised with both the father and the mother’s counsel the benefits of a mediated outcome and the detrimental effects of ongoing conflict on the child.  After the luncheon adjournment the father advised the trial Judge he did not want to pursue a mediated outcome.  At that stage, because of the mother’s unavailability the following day due to her medical treatment, the trial Judge determined, and the father agreed, he should deal with current contact arrangements and the mother’s application for the preparation of a family report.  The father then raised matters by way of re-examination including the playing of a tape recording of a telephone conversation with the child.

1. We find no merit in the complaint that the trial Judge unnecessarily delayed the proceedings by suggesting mediation to the parties.  The transcript reveals little time was spent on this issue.  It was, in our view, entirely appropriate of the trial Judge to have suggested mediation to the parties as being a procedure which may resolve their differences and be in the best interests of the child.  At that time the litigation had been ongoing for over nine years, the child was involved in the ongoing conflict, and the mother was suffering a serious medical condition.  The finality of the litigation, which may have been achieved by a mediated outcome, was a desirable outcome not only for the parties, but particularly for the child who was the subject of the trial Judge’s primary focus.

Hearing of 24 January 2006

1. The hearing on 24 January 2006 was by way of a case management relisting instigated by the mother’s solicitor. The mother’s solicitor sought an adjournment of the proceedings for six months based on a medical report from the mother’s treating oncology registrar.  The mother’s solicitor appeared by telephone.  The solicitor advised the trial Judge he had delivered a copy of a medical report concerning the mother to the father’s home the previous evening.  The father indicated he had only received the medical report that morning.  The trial Judge ensured the father had time to read the report.

2. The trial Judge pointed out to the father, when the father challenged the veracity of the report, that the report before him was on the letterhead of the regional Adelaide Health Service, and had “a signature that is consistent with the name below it, a [Dr K], who is an oncology registrar at the [Adelaide Hospital]”.  The trial Judge then said:  

   … I would accept that, for today’s purposes, at face value, and say that appears to be something that has come from that hospital, and is signed by an oncology registrar. …

   On the strength of this letter, I would vacate the dates, but I wouldn’t say, and it’s not coming back for six months.  I would set a further mention date after the filing of a more comprehensive document.  I do stress that this may be all [the mother’s solicitor] was able to obtain in the time available.  As soon as he brought to my associate’s attention that an adjournment was being sought, I fixed today as the date by which something had to produced [sic], because I knew I was going away, and I didn’t want it having to come up before someone else in my absence.  So this may have been a bit of a rushed job.  But on the face of it, it’s by someone qualified, someone who belongs to a significant health service establishment, and although it doesn’t go into this sort of detail, [Mr Feranti], regrettably people undergoing this sort of therapy do come before this court quite regular [sic], and what their treating oncologists tend to say is that the less stress the better, [sic] their prospects of recovery. (Transcript, 24 January 2006, p 14)

3. In discussion with the father the trial Judge indicated that he proposed to order the mother file an affidavit of her treating specialist, such affidavit to set out her diagnosis, prognosis and treatment (transcript, 24 January 2006, p 17).  After the trial Judge made orders for the filing of an affidavit dealing with the mother’s health issues, the father sought to have the order amended to include in lieu of “treatment being administered [to the mother]” that the expert be directed to provide “[t]he name and course [of treatment being undertaken by the mother]” (transcript, 24 January 2006, p 26).  The father explained the reason he sought the amendment to the order was in order that he could conduct research about the mother’s treatment. 

4. The trial Judge, correctly in our view, pointed out to the father that he would not be able to accept any medical opinion proffered by the father about a particular course of treatment, and whether that course required the mother to attend hospital on particular days.  His Honour adjourned the proceedings to 1 March 2006 when the expert report was filed.

5. We see no merit in this challenge by the father.  The trial Judge very properly granted only a short adjournment and required the filing of proper evidence about the mother’s medical condition.  His Honour’s rejection of the amendment sought by the father to his orders was soundly based.  It demonstrated no bias by the trial Judge.

6. In summary, the father has not established either actual or apprehended bias by the trial Judge, and his assertion that there was a denial of natural justice or procedural unfairness because the proceedings were unnecessarily delayed by the trial Judge has not been established.

Delay in delivery of reasons

1. The proceedings before the trial Judge concluded on 4 August 2006 and his Honour’s reasons were not published until just over a year later on 26 October 2007 and 12 November 2007.

2. It is well established by authority that delay in delivery of reasons, whilst unsatisfactory, particularly if unexplained, does not necessarily constitute appealable error.  Rather, the reasons require much greater scrutiny than would otherwise be the case (see NAIS and Others v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 470; Monie v the Commonwealth (2005) 63 NSWLR 729; McCrossen and McCrossen (2006) FLC 93-283; Rollings & Rollings [2009] FamCAFC 87).

3. We have carefully examined the father’s very detailed complaints.  In the context of this examination we have had careful regard to the transcript of the proceedings, and his Honour’s reasons.  We accept there was considerable delay in the delivery of those reasons.  It must be appreciated, however, that there are many demands upon the time of a trial Judge.  It is necessary and appropriate for Family Court judges to give priority to work that requires it.  When his Honour did deliver his reasons they were careful and detailed.  We detect no error in his reasons or the orders made.  This complaint is without substance.  

Asserted error by trial judge in transferring the proceedings, other than the assessment of costs, from the melbourne registry to the adelaide registry

1. The father’s challenge to the trial Judge’s order which transferred the proceedings, other than the assessment of costs ordered to be paid by the father, from the Melbourne Registry to the Adelaide Registry was, we discern from the father’s written submissions, articulated on three bases.  First, the father submitted he was denied procedural fairness by not being advised that his Honour was contemplating such an order, and not having the opportunity to put submissions in respect of such an order.  Second, the father asserted the trial Judge made the transfer order without an application by either party for him to do so.  We understand this aspect of the father’s challenge is that the trial Judge lacked power under the rules to make the transfer order.  Third, the father submitted that his Honour erred in the exercise of his discretion in making the order by finding the father had the ability to travel, and this mistake vitiated the exercise of his discretion.  Ancillary to this argument was an argument that it was improper to “split” the file, with the costs assessment aspect of the proceedings remaining in the Melbourne Registry.

2. It is not in dispute that neither party sought an order for transfer before the trial Judge, but rather his Honour raised the question of transfer on a number of occasions with the parties on both 4 August 2006 (transcript, pp 185-186) and 12 November 2007 (transcript, pp 235-239, 267-271, 278-290). 

3. We are satisfied there was no procedural unfairness to either party in respect of the order for transfer ultimately made by the trial Judge.  Each party was fully apprised of his Honour’s consideration of the issue, and had the opportunity to put arguments in opposition to the proposed transfer.

4. The second challenge to the order we have identified is the father’s assertion that the trial Judge lacked power under the Act or the rules to make the transfer. This submission is without merit. Section 27A of the Act provides as follows:

   The Court or a Judge may, at any stage of a proceeding in the Court, direct that the proceeding or a part of the proceeding be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court or Judge imposes.

5. The rule relating to transfer of proceedings between registries of the Court is r 11.17.  The factors to be taken into account in determining to transfer a matter are set out in r 11.18.  Those rules provide as follows:

   11.17  Transfer to another court or registry

   A party may apply to have a case:

   (a)heard at another place; or

   (b)transferred to another registry or court exercising jurisdiction under the Act.

   11.18  Factors to be considered for transfer

   (1)   In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46 (3A) of the Act, the court may consider:

   (a)the public interest;

   (b)   whether the case, if transferred or removed, is likely to be dealt with:

   (i)    at less cost to the parties;

   (ii)    at more convenience to the parties; or

   (iii)   earlier;

   (c)  the availability of a judicial officer specialising in the type of case to which the application relates;

   (d)   the availability of particular procedures appropriate to the case;

   (e)   the financial value of the claim;

   (f)  the complexity of the facts, legal issues, remedies and procedures involved;

   (g)   the adequacy of the available facilities, having regard to any disability of a party or witness; and

   (h)    the wishes of the parties.

   Note Subsection 33B (6) of the Act provides that, in deciding whether a case should be transferred to the Federal Magistrates Court, the court must have regard to:

   (a)   any rules of the court applying to the transfer of cases;

   (b)   whether cases in respect of an associated matter are pending in the Federal Magistrates Court;

   (c)   whether the resources of the Federal Magistrates Court are sufficient to hear and determine the case; and

   (d)    the interests of the administration of justice.

   (2)      Subrule (1) does not apply to:

   (a)a case raising, or relying on, a cross-vesting law in which a party objecting to the case being heard in the Family Court applies to have the case transferred to another court;

   (b)    the transfer of a case under the Corporations Act 2001; or

   (c)   a case that must be transferred in accordance with a legislative provision.

   Note Division 4.2.2 deals with cross-vesting laws and Chapter 25 deals with cases under the Corporations Act 2001.

6. However, other provisions of the rules are also relevant.  Specifically, r 1.10 and r 1.12.  We now set out r 1.10 and r 1.12:

   1.10    Court may make orders

   (1)    Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules.

   (2)         When making an order, the court may:

   (a) impose terms and conditions;

   (b)   make a consequential order;

   (c)  specify the consequence of failure to comply with the order; and

   (d)  take into account whether a party has complied with a pre-action procedure.

   1.12 Court may dispense with Rules

   (1)   These Rules apply unless the court, on application or its own initiative, orders otherwise.

   (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

   (3)      In considering whether to make an order under this rule, the court may consider:

   (a)   the main purpose of these Rules (see rule 1.04);

   (b)   the administration of justice;

   (c)   whether the application has been promptly made;

   (d)   whether non-compliance was intentional; and

   (e)  the effect that granting relief would have on each party and parties to other cases in the court.

7. The trial Judge was, under s 27A and in accordance with either r 1.10 or 1.12, able to make the order for transfer on his own initiative. Thus we reject the father’s assertion the trial Judge did not have the requisite power to transfer part of the proceedings.

8. The father also challenged the factors taken into account by the trial Judge in the exercise of his discretion in transferring the matter.

9. In his third judgment, the trial Judge noted he had raised the issue of transfer with the parties and that neither had sought a transfer of the proceedings.  His Honour explained that the mother and child had lived in South Australia since early 2004, that the mother was living in M, South Australia, a centre to which the Family Court had conducted circuits (from the Adelaide Registry).

10. His Honour took a number of factors into account in the exercise of his discretion under r 11.18.  They can be broadly summarised, and include the following:

    ·the pending competing parenting proceedings;

    ·the mother’s application for a family report;

    ·the father’s application to attend any function or activity of the child and to attend the child’s school;

    ·that the father had filed a Notice of Child Abuse (which had been directed by the Court to Families SA);

    ·that the mother’s solicitor, who had acted for her for many years, was located in Victoria;

    ·that the mother did not support the transfer;

    ·that the child had been living in South Australia for over two years;

    ·the best interests of the child;

    ·the costs to the parties;

    ·whether the matter could be heard earlier;

    ·some unique features of the case, including that a number of judicial officers in the Melbourne Registry could be subject of a disqualification application by the father (based on the father’s statements he opposed any judicial officer who had previously heard proceedings between himself and the mother hearing his parenting case);

    ·the practicality of the appointment of an ICL by the Legal Services Commission in South Australia; and

    ·the father’s objection to the previous family consultant, and his objection to the then ICL.

11. The father challenged the trial Judge’s finding in paragraph 56 of his reasons where his Honour said “[t]hat sort of travel is not out of his normal range of operations”. 

12. The father has omitted from his submissions the preceding part of this paragraph which puts his Honour’s final sentence into context.  In paragraph 56 his Honour said:

    The second factor is less cost to the parties.  I am not in a position to say that the costs to the mother will be less or more if the case is heard in South Australia or Victoria.  For the father it will be clearly more expensive because he will have to travel to South Australia.  However, in the evidence before me at the hearing of the contravention applications, he demonstrated the capacity to travel to South Australia on a fairly regular basis, namely at the commencement and conclusion of each of [the child’s] contact periods with him.  That sort of travel is not out of his normal range of operations.

13. Insofar as the “splitting” of the outstanding assessment of costs and the parenting proceedings is concerned, it is unnecessary that we deal with this topic in depth.  It is not in dispute that an assessment of costs by a Registrar is essentially an administrative matter (see Brott & Abeles (2007) FLC 93-310).But of more significance is the procedure for assessing costs now provided in the rules.  That procedure was discussed by Boland J in Hope & Maple [2008] FamCAFC 130 at paragraphs 101 to 104. It is a procedure designed principally to be conducted on the papers, and only if objection to the assessing officer’s preliminary assessment is raised (with the risk of costs penalties if not established) are the parties required to attend the Court for the assessment process. We consider his Honour’s decision in the circumstances was a practical one which does not demonstrate error.

14. We have carefully examined his Honour’s detailed reasons in paragraphs 42 to 68 of his reasons dealing with the transfer.  It is not suggested that his Honour overlooked any relevant factor, or took into account any extraneous matter.  This was a discretionary decision.  We detect no appealable error in his Honour’s consideration of the issue, or the order ultimately made for transfer.

The challenge to the costs order

The father’s costs appeal

1. The father relied on one ground of appeal in relation to his challenge to the trial Judge’s costs order, namely ground 7.  That ground is in the following terms:

   The presiding judge erred in making cost orders against the father without evaluating the father’s capacity to meet such cost orders. 

2. The father’s summary of argument, however, seeks to assert a number of other errors by the trial Judge.  Although paragraphs 27 to 38 of the father’s summary of argument appear under the heading “The Judgment delivered 12 November 2006 (Costs)”, before us the father indicated he only relied on paragraphs 27 to 29 (inclusive) of those submissions in relation to the costs ground.

3. Those submissions can be broadly summarised as asserting: 

   ·error in disregarding offers of settlement made by the father on 13 March 2006 and 30 May 2006;

   ·error in relation to the basis on which the mother’s legal representation was provided;

   ·failure by the trial Judge to establish what agreements were in place between the mother and her legal representatives, and the impact of such agreements.

4. While these asserted errors are not identified in the single ground relating to costs, as we permitted the father to argue the claims before us, and because the mother was on notice (from the father’s submissions) we have dealt with them.

Trial Judge’s reasons

1. His Honour’s third judgment, which was published on 13 November 2007, deals with costs.

2. At the commencement of his reasons, the trial Judge noted the basis on which costs had been sought – costs on a party and party basis in respect of the contraventions set out in paragraphs 1 to 3 of Part D of the father’s application (asserted breaches of telephone contact and travel arrangements) and indemnity costs in respect of those asserted contraventions in paragraphs 4 to 8.

3. His Honour noted that costs were sought by the mother essentially on the basis that the father had been wholly unsuccessful in the proceedings.

4. At paragraph 5 of his reasons, the trial Judge recorded counsel for the mother’s evidence about her financial circumstances, namely that he had advised she was a pharmacist earning about $80,000.00 per annum and owned one item of real estate.  His Honour said:

   … I have no details of either party’s financial circumstances before me, however, and it is therefore very difficult to place any reliance on those matters, and any disparity that they might show. (paragraph 5)

5. His Honour went on to explain the father had informed him that he had been made bankrupt by the solicitor for the mother in some earlier proceedings over costs, but had been successful in having the bankruptcy annulled.  His Honour recorded that the father said there were ongoing issues about the costs of the trustee. 

6. The trial Judge then said:

   … I have no evidence about these matters on which I could make any finding that might operate in respect of my decisions now about costs under section 117(2A)(a). (paragraph 6)

7. In dealing with the question as to whether either party was in receipt of assistance by way of legal aid, the trial Judge recounted that the father:

   … made reference to the fact that the mother’s solicitor has apparently been - and perhaps some of the counsel who have appeared for her have been acting on a fee declined or a fee-deferred basis.  (paragraph 7)

8. Again, his Honour said “I am in no position to make any finding about that”.  However, the trial Judge recorded he had heard the words “pro bono” used in respect of the mother’s representation on occasions, and went on to postulate:

   … it may well be that what has happened is that the solicitor and counsel have agreed not to render accounts during the pendency of the proceedings.  But I will not go further into that. Neither party was in receipt of legal aid as far as I am aware, and so that matter is not relevant.  (paragraph 8)

1. As nothing in this appeal turns on the trial Judge’s findings about the conduct of either party to the proceedings, it is unnecessary we record his Honour’s findings on s 117(2A)(c).

2. In dealing with whether either party to the proceedings had made an offer to the other party in writing to settle the proceedings, the trial Judge explained that the father had drawn to his attention four letters, including two letters dated 13 March 2006 and 13 May 2006 respectively.  Having noted the letters annexed to the father’s affidavit were ones which were directed towards proposals for a variation of orders, his Honour went on, in paragraph 12, to conclude on this topic:

   However, they do not in any way bear upon an offer to compromise the contravention proceedings which indeed at the time of the first of those letters did not exist, and although there are threats to issue contravention proceedings in those letters, that is not to the point.  The fact is that once the proceedings were on foot, none of the letters to which [the father] made reference contains an offer that, having regard to my judgment, I could say the mother should have accepted or attempted to negotiate on.  The offers made after the commencement of the proceedings all had to do with [the child] coming to live with her father, and the father then being prepared to do certain things or agree to certain new arrangements once the child had moved to him.  They do not fall for consideration in the sense of subparagraph 117(2)(f) or (g) for that matter.

3. In paragraphs 17 to 28 of his reasons, the trial Judge dealt with the issue of whether the father had been wholly unsuccessful, and in so doing, briefly examined again a number of the contraventions asserted.  As the father’s ground of appeal and submissions do not raise any issue about the paragraphs it is unnecessary we refer to them.

4. At paragraph 29 of his reasons, the trial Judge considered the contraventions in paragraphs 4 to 8 of the father’s contravention application, being the “old” contravention allegations which he found in his reasons to be an abuse of process.  His Honour referred to the principles to be applied in making an order for indemnity costs by reference to the decision of Sheppard J in Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225.

5. At paragraph 33 of his reasons, the trial Judge said:

   Having regard to the judgment to which I have referred of Sheppard J - and there are other aspects of it which are also relevant, I am quite satisfied that in the circumstances set out in my reasons delivered on 12 November 2007 in relation to the summary dismissal application, I am quite satisfied that it is appropriate to make the order sought by the mother for the payment by [the father] of her costs on an indemnity basis.

Discussion

1. There is no doubt that, having established there are circumstances which justify it so doing, the Court has a broad discretion, exercised by reference to matters, including those particularised in s 117(2A), to order one party pay the other party’s costs of the proceedings. 

2. In respect of the father’s first complaint that the trial Judge erred in relation to the parties’ financial circumstances, we note that neither party had filed a Financial Statement and the trial Judge, when hearing submissions from the parties on costs and in his reasons, made it clear he could give no weight to that factor as he did not have relevant evidence before him.  The father did not seek to put written submissions before the trial Judge about his financial position, nor did he seek to file a Financial Statement.  We find no merit in this aspect of the father’s challenge to the costs order.

3. In dealing with the aspect of whether or not the mother was receiving legal representation on a pro bono basis, the trial Judge pointed out to the father that in the event the mother had not been rendered bills for some part of her legal representation that would be a matter which could be addressed in the assessment process.  We detect no error by the trial Judge on this point.  However, the basis on which the mother’s legal representatives were retained does have relevance to the indemnity costs issue which we will later discuss. 

4. The father referred to his letter dated 7 March 2005.  We have identified the father’s letter dated 7 March 2005, being Annexure 21 to his affidavit sworn 15 April 2005.  We accept that the letter does refer to a withdrawal of a contravention and contempt application but on the basis that the mother agreed to increased contact.  We are unable to establish that the contravention and contempt applications referred to were the applications ultimately determined by the trial Judge.  Further, we accept the trial Judge was correct in rejecting the matter as an offer of compromise, as it was conditional upon changing the contact arrangements.  We agree with his Honour that the other letters annexed to the father’s affidavit do not contain any compromise and are limited to change of arrangements for contact. 

5. The father failed to include in his appeal book the letters referred to at paragraph 27 of his submissions and we are unable, in those circumstances, to give consideration to them.

6. In relation to the father’s complaint that the mother was receiving pro bono legal assistance, we note the trial Judge carefully explained to the father at the hearing and repeated in his reasons that the mother would have to properly establish before a registrar acting as an assessing officer her legal fees rendered to have those taken into account on an assessment.

7. Whilst it would have been desirable for the mother to have filed an affidavit setting out the basis of her legal representation, we do not consider it was essential, having regard to the safeguards inbuilt in the assessment process which will protect the father in the event that the mother does not have a legal liability for costs, in assessing costs on a party and party basis.

8. However, the father asserts that the trial Judge was in error in making an order on an indemnity costs basis when there were no details before him of the basis on which the mother’s legal fees were charged.  We find merit in this challenge.

9. In LGM & CAM (Contempt) (No 2) (2008) FLC 93-355 Bryant CJ and Warnick J, with whom Finn J agreed, at paragraph 95 referred to the indemnity costs order made in those proceedings when the trial Judge did not have evidence of the basis on which the respondent’s costs were charged or their quantum. Their Honours said at paragraphs 95 and 96:

   95.However, we think there is merit in ground 8.2. Rule 19.08(3) of the Family Law Rules 2004 provides:

   (3) A party applying for an order for costs on an indemnity basis must inform the court if the party is bound by a costs agreement in relation to those costs and, if so, the terms of the costs agreement.

   96.In Kohan and Kohan (1993) FLC¶92-340 at 79,611 the Full Court of this Court said:

   ...We are of the opinion that in an appropriate case, the Court has a discretion to order costs on an indemnity basis and that such costs may be ordered, where they have been incurred under a costs agreement which departs from the usual scale of costs. However, it is fundamental to the exercise of that discretion in the Family Court that the Judge should not only understand that such an order is a very great departure form the normal standard, but also that the Judge should know what the terms of the agreement are, to what extent it exceeds the parameters set by the scale and what its likely impact will be on the financial position of each of the parties. This impact is a relevant matter to which the trial Judge should have had regard, when considering the financial circumstances of each of the parties to the proceedings under s 117(2A)(a), or perhaps even more as a relevant matter under paragraph (g). The degree to which a costs agreement departs from the established norm and the actual financial significance of such a departure may itself be a reason for not ordering costs on an indemnity basis.

10. There is nothing to suggest from the transcript, or from his Honour’s reasons, that any costs agreement between the mother and her solicitors was available to the trial Judge when he made his order for indemnity costs.  Neither was there any evidence of the quantum of those costs.  We consider, although not specifically pleaded in the father’s Notice of Appeal, that the issue of indemnity costs was more than adequately raised in his summary of argument and the mother chose not to put any material in opposition.  Although the father did not formally seek to amend his Notice of Appeal, we allowed him to propound his submissions.  In these circumstances, we consider that the challenge to the indemnity costs order should succeed.

Application to adduce further evidence

1. We have carefully perused the evidence sought to be adduced by the father in respect of this appeal.  The father sought to rely on two affidavits, the first being an affidavit sworn and filed on 13 February 2009 (“the first affidavit”) and the other affidavit also sworn and filed on 13 February 2009 principally in respect of Appeals SA 7 of 2008 and SA 32 of 2008 (“the second affidavit”).  The affidavit may be dealt with shortly.

2. In his first affidavit the father asserted further non-compliance of orders by the mother. The matters deposed to are contentious and are subject of other proceedings before the Court.

3. The second affidavit filed in respect of the father’s two other appeals but relied on in this appeal is substantially directed to his assertions about the ICL, and seeks to put in issue matters which have no relevance to this appeal.  Given the contentious and/or irrelevant nature of the material, we reject the father’s application to adduce further evidence.

Re-exercise of discretion

1. The trial Judge made an order on 13 November 2007 that:

   1.The father pay the mother’s costs of and incidental to the father’s Application – contravention filed 4 February 2005 as amended on 26 April 2005 (the father’s application):

   …

   (b)as to the contraventions alleged in paragraphs (4)-(8) of Part D of the father’s application on an indemnity basis. 

2. We have found appealable error by the trial Judge in ordering the costs be paid on an indemnity basis.  We consider it is appropriate that we should re-exercise the discretion of the trial Judge.

3. The contraventions in paragraphs 4 to 8 of Part D were found by the trial Judge to be an abuse of process and dismissed on that basis.  The father was wholly unsuccessful in respect of these contraventions and we consider this circumstance justifies an order that the father should pay the mother’s costs of the contraventions alleged in paragraphs 4 to 8 on Part D of the father’s application on a lawyer and client basis.  We propose to amend the trial Judge’s order accordingly.

I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  30 September 2009