Fullmer & Omeros (No 2)
[2022] FedCFamC1A 110
•19 July 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fullmer & Omeros (No 2) [2022] FedCFamC1A 110
Appeal from: Fullmer & Omeros (No 4) [2021] FedCFamC2F 319 Appeal number(s): NAA 75 of 2021 File number(s): MLC 7203 of 2016 Judgment of: MCCLELLAND DCJ Date of judgment: 19 July 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from primary judge’s dismissal of multiple counts of alleged contravention against the respondent – Reasonable excuse for respondent failing to comply with orders – No error established – Protracted litigation history – Absence of transcript – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) ss 60CG, 70NAE
Federal Circuit and Family Court of Australia 2021 (Cth) s 35
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181
Fullmer & Omeros [2022] FedCFamC1A 6
FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236
House v The King (1936) 55 CLR 513; [1936] HCA 40
Insley & Maidment [2022] FedCFamC1A 48
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255
Newett and Newett (No 2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 56 Date of hearing: 16 May 2022 Place: Melbourne (via videolink), delivered in Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 75 of 2021
MLC 7203 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FULLMER
Appellant
AND: MS OMEROS
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
19 JULY 2022
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 3 December 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fullmer & Omeros has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
X was born in 2014 (“the child”). She is now eight years old. Her parents separated when she was approximately one year old and have been involved in litigation not only in this Court, but also in state courts ever since. On repeated occasions, judges have expressed very real concern regarding the potential impact on the child of this ongoing litigation. I share that concern.
This appeal relates to orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) made on 5 November 2021, in which her Honour dismissed six counts of contravention of orders alleged by the appellant father, Mr Fullmer (“the appellant”) against the respondent mother, Ms Omeros (“the respondent”). The Court found that the respondent had failed to comply with orders to facilitate changeover for the child to commence spending time with the appellant, but that she had nevertheless made reasonable attempts to comply and, further, had a reasonable excuse for failing to comply (at [72] and [73]).
Two additional counts within his contravention application in which the appellant succeeded were in respect to incidents where the respondent did not facilitate the child communicating with the appellant by way of electronic means. The primary judge found, however, that those incidents were of a “less serious” nature and, accordingly, imposed no penalty on the respondent (at [89] and [93]).
In the context where the respondent’s defence of reasonable excuse for failing to comply with orders was based on ongoing disputation between the parties regarding changeover arrangements and also in respect to arrangements for electronic communication between the child and the appellant, the primary judge, after inviting submissions from the parties, determined that it was appropriate to amend orders previously made by the Court with a view to bringing clarity and certainty in respect to those arrangements. The appellant appeals against those orders and the decision of the primary judge to dismiss his first six grounds of alleged contravention.
The appellant has elected to proceed with this appeal in the absence of a transcript of the primary proceedings which, as explained to him in ex tempore reasons for judgment delivered by Austin J on 31 January 2022, has impeded his prospects of succeeding with the appeal.
For reasons which I explain, I have found the appeal to be without merit and it has been dismissed. As both parties are self-represented, no issue of costs arises.
BACKGROUND
Pursuant to orders made on 6 March 2019 (“the orders”), the child is to live with the respondent and spend time with the appellant, including as relevantly noted at [8] of the reasons for judgment:
5. [The child] spend time with the [appellant] as follows:-
(a)during school terms, each alternate weekend from after kindergarten/school (or 3.30pm) on Friday until the commencement of kindergarten/school (or 9.00am) the following Monday, such time to commence on the first weekend of the school term following each school term holiday period…;
…
(c) for half of all school term holiday periods, from the conclusion of kindergarten/school (or 3.30pm) until 5.00pm the following Friday;
…
(e)by Skype, FaceTime, telephone or other like electronic communication, each Sunday morning that [the child] is not in the [appellant’s] care for a period not exceeding ten minutes between 10.00am and 10.30am, such call to be instigated by the [respondent] to the [appellant] and the [appellant] to ensure that his device is switched on, charged and able to receive calls;
(f)on the Father’s Day weekend, in the event that [the child] is not already in the care of the [appellant], from 4.00pm on the Saturday preceding Father’s Day until the commencement of school on the day after Father’s Day.
Order 7 of the orders provided for the following changeover arrangements:
7. For the purposes of changeovers pursuant to these orders:-
…
(c) on a non-school day;-
(i)seven days prior to any changeover that shall not occur at school, the [respondent] advise the [appellant] of the availability of the maternal grandmother to effect changeover;
(ii)in the event that the maternal grandmother is available to facilitate changeover, changeover occur at the Suburb S Library, in the State of Victoria; and
(iii)otherwise the parties do all such acts and things necessary to engage a private child contact service such as DD Family Services, FF Contact Service or such other service as may be nominated by the [respondent] to facilitate changeover, the costs of same to be borne by the [appellant] at first instance and the [respondent] to electronically reimburse the [appellant] as to one half of that cost;
(d)as may be otherwise agreed between the parties in writing from time to time.
There has been ongoing litigation between the parties since those orders were made. That litigation history is set out at [2] as follows:
(a)the [appellant] filed a Contravention Application on 6 September 2019. That was summarily dismissed on 30 September 2019;
(b)on 22 November 2019, the [respondent] filed an Initiating Application seeking to vary the primary orders and to travel overseas with [the child]. That application was dismissed on the basis of the principles in Rice & Asplund [1978] FamCA 84 (“Rice & Asplund”) by Mercuri J on 20 February 2020;
(c)on 12 August 2020 the [appellant] filed a further Contravention Application;
(d)on 24 August 2020 the [appellant] filed an Initiating Application seeking to vary the primary orders. That application was given a return date of 22 September 2020;
(e)on 14 September 2020 the [appellant’s] Contravention Application filed 12 August 2020 was listed before a deputy registrar. The application was dismissed for non-compliance with the rules. At that time, the [appellant’s] affidavit filed 9 September 2020 was struck out as an abuse of process and removed from the court file and portal;
(f)on 22 September 2020 the [appellant’s] Initiating Application was listed before a deputy registrar. The application was adjourned to 29 March 2021;
(g)on 23 September 2020 a deputy registrar made orders in chambers by consent varying the order for the mechanics of changeover, dispensing with the requirement for the parties to engage a professional supervisor, and for changeovers not at [the child’s] school or facilitated by the maternal grandmother to be effected between the parties at Suburb S Police Station;
(h)the appellant filed a further Contravention Application on 4 March 2021 setting out some 27 alleged counts of contravention. This is the application currently before the Court;
(i)on 29 March 2021 a deputy registrar listed the [appellant’s] Initiating Application filed 24 August 2020 for a threshold Rice & Asplund hearing before a judge on 13 July 2021, and adjourned the [appellant’s] Contravention Application to a directions hearing on 29 April 2021;
(j)at the directions hearing in relation to the [appellant's] Contravention Application before a deputy registrar on 29 April 2021, counts 9 to 22 of that application were struck out. The [appellant] was directed to file further material regarding counts 24 to 27. He was put on notice that the remaining counts may be dismissed if he did not file further material compliant with the Rules. The Contravention Application was adjourned to a deputy registrar on 29 July 2021;
(k)the [appellant] filed an Application of Review of Registrar’s decision on 13 May 2021. He sought to review the decision of the deputy registrar and her determination to strike out counts 9 to 22 of his Contravention Application;
(l)on 29 July 2021 a deputy registrar listed the matter before me for a hearing in relation to counts 1 to 8 of the Contravention Application filed 4 March 2021 and struck out all other counts. The [appellant] did not file an Application to Review the decision of the deputy registrar.
Further, on 16 July 2021, an Initiating Application filed by the appellant on 24 August 2020 seeking to vary the primary orders was struck out pursuant to the principles adumbrated in Rice and Asplund (1979) FLC 90-725. Also struck out was the appellant’s application for review of the orders made by the deputy registrar dated 29 April 2021, in which she dismissed counts nine through to 22 of the appellant’s contravention application filed 4 March 2021.
Accordingly, when the matter was listed before the primary judge on 20 and 24 August 2021, only counts one through to eight of the contravention application were before the Court.
As noted at [7], counts one through to six were expressed in similar terms and alleged that, on various dates, the respondent contravened Order 5 of the orders by “failing to ‘attend the changeover place’ such that time did not occur” between the child and the appellant.
The primary judge found, in respect to each count, that the respondent had acted contrary to the requirements of Order 5 by failing to facilitate the child spending time with the appellant. The primary judge found, however, that the respondent had a reasonable excuse for doing so.
Counts seven and eight, which were found against the respondent, were to the effect that, on two occasions in August 2020, the respondent failed to ensure that the child engaged in Skype communication with the appellant. As noted, however, the primary judge did not impose a penalty on the respondent in respect to those contraventions. Those contraventions are relevant to the extent that, in order to avoid further disputation, the primary judge discharged Order 5(e) of the orders and replaced that order with the following:
4.The [child] born [...] 2014 (“the child”) is at liberty to communicate with each of her parents at all reasonable times, and the parent who has the child in his or her care shall facilitate her requests for such contact.
The primary judge also varied changeover arrangements as follows:
5.Order 7(c)(iii) of the orders made 6 March 2019 be varied to provide in its entirety:
(iii) otherwise, the parties shall effect changeover at Suburb S Police Station as follows:
(A) at the commencement of time, the [appellant] shall arrive 10 minutes before the handover time and wait inside the police station. The [respondent] will bring the child into the police station and hand her over to the [appellant]. The [appellant] shall then remain with the child inside the police station for 10 minutes after the handover, and the [respondent] shall promptly leave.
(B) at the conclusion of time, the [appellant] shall arrive with [the child] 10 minutes before the handover time and wait inside the police station and the [respondent] will collect the child from the [appellant] inside the station. The [appellant] shall then remain inside the police station for 10 minutes after the handover, and the [respondent] shall promptly leave with the child.
GROUNDS OF APPEAL
The grounds of appeal are set out in the Notice of Appeal filed 3 December 2021 as follows:
1.The Judge have made a decission based on a wrong principle, influenced by extraneeous and irrelevant comments from the respondent without any evidence. (It is clear as per the evidences on the applicat affidavit with police reports and DD Family Service’s crossed emails, also email of FF contact services "police investigator" that [the respondent] didn't want to accept any changeover offered or inclusive neiher wanted to attend the police station when the police called her to do it, that it is at exactly only 30 metres in front of the Suburb S Library, as per court orders and where changeovers happened 12 times till [the respondent] didn't wanted to do it unilaterally against the contract agreement initially with DD Family services pointed by the court.
2.That the Judge has mistook the facts (Police, DD Family Services, FF contact services, Babysitter, [the respondent’s] own emails threatening the [appellant] and DD Family Service of don't come back from Town GG etc)
3.Failed to take into account some relevant evidences, declarations, matters, also crossed examination of the [appellant] witness DD Family Services against the respondent false allegations of violence during the changeovers, related to the breaches of counts 1 to 6.
3.Placed innapropiate weight on irrelevant observations against the [appellant] about an order, that the judge made unwelcome comments without any basys on her reasons for judgements, and she is not aware of that the police prosecutor in 2018 didn't support the false allegations (Court transcript and recording), the same as the County court in 2018 a Judge, confirmed that the [appellant] didn't do anything and [the respondent] has commited perjury and acted in an Impure conduct against him and the mothers of the school, as well as the County court confirmed [the respondent] perjury in 2019 and struck out the orders against the mothers of the school that were also falsely accused on the same AVO that the [appellant]. As per a judge of the County court the [appellant] still awaiting the Supreme court for to have removed this falselly accused AVO, because unfortunatelly told by a judge, there is no precedent in Australia, I see what happened here and that has been breach your rights and these [respondent’s] rights, but I am not going to open the Pandora's box. I am sorry Mr Fullmer.
The [primary judge] has taken a decission based on wrong false accusations, False accusations confirmed by the police at Magistrate court and at County court (Court transcripts and recordings available), also confirmed by a judge of the County court and exposed and informed the Federal court, where the mothers of the school were crossed examined by a judge and rejected an injuction and restraining order against them in May 2018. 3 days later and where we were not present [the respondent] destroyed 5 days trial at Federal court (before a judge) in only 20 minutes at Magistrate court commiting perjury and false accusations.
The [primary judge] placed really innapropiate weight on this matter without known the truth.
(As per the original)
While discerning the substance of the grounds is challenging, I respectfully agree with the summary of the grounds provided by Austin J in his decision dated 31 January 2022 at [9],[1] which was as follows:
[1] Fullmer & Omeros [2022] FedCFamC1A 6.
The grounds of appeal currently pleaded by the appellant do not specifically correlate with any of the three appealed orders and compendiously allege the primary judge:
•…made a decission based on wrong principle, influenced by extraneous and irrelevant comments from the respondent…
•…mistook the facts…
•Failed to take into account some relevant evidences, declarations, matters…
•Placed innappropriate weight on irrelevant observations against the [appellant]…
•…taken a decission based on wrong false accusations…
(As per the original)
Little clarification is obtained from the actual orders sought by the appellant, which are as follows:
1. - Amend order 3 of the Final order 05/11/2021
- That [the child’s] Skype account be monitored and not disconnected.
- That [the child’s] Skype account created that both parents have the user and password to be able to check any time if the [appellant] has been blocked again by the [respondent].
- That independently of that [the child] can communicate freely with the [appellant] anytime. Be in place an order that there's a minimum of 2 communications a week, one during week days, and the other over the weekend at a reasonable time, with a minimum time of 15 minutes without the [respondent’s] censorship.
2. - That the order 7 (c) (iii) be amended.
- That when change overs occurs at the Police station, the parent that collect the child stay at the before at police station, and when changeover occurs, the parent that drops the child remains at the police station allowing the other parent and child leave the police premises with the child, to avoid expose the child to the common police station situations.
- That the parent that collect the child, travel to the other parent police station area, being actually Suburb S for the [respondent] and Suburb Q for the [appellant] where he leaves for the last 9 years.
3. - Maintain opened the contravention application until deal with the remaining counts and breaches that has been ignored, and where there was not at all any reasonable excuse.
(As per the original)
Despite its lack of clarity, I will nevertheless assume that the appeal is, in substance, an appeal against Orders 4, 5 and 6 of the orders made by the primary judge. That is, to the extent that it is comprehensible, the Notice of Appeal appears to focus upon the decision of the primary judge to:
·dismiss the contraventions numbered one to six on the basis of her Honour’s finding that the respondent had a reasonable excuse for failing to comply with orders of the Court;
·require changeovers to occur at the Suburb S police station; and
·rescind previous orders which mandated the child communicating with the appellant at set times.
DISPOSITION
In considering this appeal, it is appropriate to adopt the approach taken by the Full Court in Newett and Newett (No 2) (2021) FLC 94-051 at [34] ,where it was stated:
…whilst we accept that the mother is acting for herself, it is not for us to rummage around in the many affidavits, transcripts and decisions which the mother seeks to place before us in order to find material which may be relevant to the questions in the appeal. Unless an error is reasonably obvious, it is for an appellant to identify and establish the asserted errors. This was explained by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 as follows:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
Consistent with that approach, I have only had regard to those parts of the appellant’s Amended Summary of Argument filed 29 March 2022 where there is a specific reference to:
·where he contends the primary judge erred in respect to matters raised in the substance of the appeal;
·evidentiary material insofar as he contends that material establishes error; and
·the extent to which he contends:
·the primary judge considered irrelevant matters; and
·the primary judge failed to consider relevant matters.
As will be explained, those contentions and evidentiary references do not establish error on the part of the primary judge.
Did the primary judge err in dismissing counts one to six of the appellant’s contravention application?
As previously noted, the primary judge accepted that the respondent had failed to comply with the orders but nonetheless found that she had a reasonable excuse for doing so in respect to counts one through six.
In doing so, the primary judge traced the history of the parties’ dispute regarding the identification of an appropriate changeover location. This is in the context where, at [51], the primary judge noted that the appellant’s alleged contraventions are that the respondent failed to facilitate changeover at the Suburb S library, which was the agreed changeover location prior to COVID-19 public safety measures being introduced by the Victorian government, during which the library remained closed.
The primary judge summarised the respondent’s concerns at [54] as including:
(a)she felt increasingly unsafe, particularly in circumstances where the library was closed as a result of the COVID-19 pandemic;
(b)the [appellant] had not complied with the procedure for changeover stipulated by DD Family Services to park away from the library. Rather, she said the [appellant] had repeatedly parked close to her car, or in such a place that she had to walk past him to get to the front entrance of the library which she found frightening;
(c)the weather was inclement; and
(d)[the child] was embarrassed that her school friends, when they were around, would witness her being exchanged between her parents with a supervisor.
The primary judge identified that, in the context of the respondent’s concerns, the parties had engaged in extensive communication with DD Family Services, who had been selected to supervise the changeover process. Despite extensive communication, the parties were unable to reach agreement save to the extent that on 17 and 20 July 2020 the parties agreed that, with the assistance of supervision, the changeover could occur outside the respondent’s home on the proviso that the appellant parked his car a sufficient distance away from the home in order to comply with an intervention order protecting the respondent.
The primary judge noted that, following those two successful changeovers, the respondent proposed that a further changeover scheduled for 31 July 2020 also take place outside her home, however this was not agreed to by the appellant, who the primary judge noted “insisted the changeovers take place at the library” (at [66]).
As a result of the stalemate between the parties, it was agreed that the child did not spend time with the appellant as contended in counts one through six of his contravention application.
Relevantly, at [73]–[77], the primary judge found as follows:
In a number of respects, the [respondent's] refusal to revert to the library steps was understandable. She said the [appellant] had parked close to her on occasion despite the agreement he would park away from the library. That is corroborated by the supervisors’ reports. She said the weather was poor and [the child] was physically uncomfortable on occasion. That is also corroborated by the supervisors’ reports. She also said she felt uncomfortable, and worried for her safety and walking around near him, particularly in light of the ongoing COVID-19 lockdowns and the library closure.
It is common ground there is a 10 year intervention order in place against the [appellant] for the protection of the [respondent]. The [appellant's] highly disrespectful behaviour towards the [respondent] at court gave me concern that he remains contemptuous of her. I note that in the proceedings before a judge of Division 2 it appears the [appellant] referred to the [respondent] in open court as “a corrupt piece of shit”. The [appellant] denied he was referring to the [respondent], and said that description was aimed at a court Magistrate. In his closing submissions before me he called the [respondent] a “compulsive liar”, said that she is “one hundred percent untrustworthy”, that she exhibits “psychopathic behaviour” and that she is “really dangerous”. I accept the [respondent] remains very wary of the [appellant], and concerned as to how he may behave around her.
Further, there was nothing in the supervisor’s evidence that the three occasions of changeover executed in close proximity to the [respondent's] home had caused any issue for the parties or the children, other than the [appellant's] resistance to the arrangement. I appreciate the road may have been busy, but DD Family Services was prepared to continue to facilitate changes in that manner. I do not accept they would have been prepared to do so if they had assessed the arrangement as posing a real danger to [the child].
Accordingly, whilst time could have proceeded had the [respondent] agreed to reverting back to the library steps for handovers, it was not, in my view, unreasonable that she did not want to do so.
The [respondent] said, and I accept, that had the [appellant] agreed to the changeover location nominated by her, time would have been facilitated. It was the [appellant's] choice to refuse to comply with the [respondent's] proposals. DD Family Services had indicated their preparedness to effect changeover in the manner nominated by the [respondent] and indeed had done so on three occasions with changeovers recorded as proceeding without issue. Certainly, the [respondent] was also inflexible, but whilst the [respondent's] proposals no doubt suited her, they were not onerous on the [appellant], nor unsafe or unreasonable. They did not require the [appellant] to breach an Intervention Order, nor set him up to do so. It was the [appellant's] refusal to agree to the [respondent's] proposed changeover arrangement that resulted in [the child] not spending time with the [appellant] on each of those occasions. Had he agreed, DD Family Services would have provided the supervised changeovers, and time could have gone ahead.
A reading of the relevant evidentiary material to which the appellant refers in his Amended Summary of Argument fails to establish any error on the part of the primary judge in dismissing alleged contravention counts one through six of the appellant’s application. This is, in part, because of the absence of a transcript of the primary proceedings.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides that the appeal court must have regard to the evidence given in the primary proceedings from which the appeal arose. Recently in Insley & Maidment [2022] FedCFamC1A 48 at [15], the Full Court per McClelland DCJ and Tree J noted the “essential nature of the record at first instance” in discharging the functions set out in s 35 of the FCFCOA Act.
The appellant’s Amended Summary of Argument refers to certain extracts from the affidavits upon which he relied in the contravention proceedings, together with annexures to those affidavits. The difficulty for the appellant is, however, that the evidence is incomplete. As noted in the reasons, the primary judge had the opportunity of asking questions of both parties when they gave evidence (at [19]). In the absence of a transcript of the proceedings before the primary judge I am unable to determine the extent to which evidence referred to by the appellant was or was not successfully challenged or, indeed, conceded as being accurate by one or other of the parties. This would, in turn, impact upon the question as to what weight, if any, the primary judge should have placed on that evidence. The determination of that issue is relevant because it impacts upon the question of whether the primary judge should have referred to the evidence or could have appropriately ignored it.
Further, significantly, the primary judge also had the opportunity to observe and take note of the conduct of the parties when they gave evidence during the course of the proceedings. Specifically, the primary judge noted at [74] that her Honour had regard to “the [appellant’s] highly disrespectful behaviour towards the [respondent] at court.” The primary judge was entitled to have regard to the manner in which the appellant presented during the course of the proceedings as being consistent with the respondent’s evidence regarding the history of the appellant engaging in a pattern of controlling and coercive conduct.
The primary judge applied correct legal principle in noting that s 70NAE of the Family Law Act 1975 (Cth) (“the Act”) defines reasonable excuse to include where 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 that the period of the contravention was “not longer than was necessary to protect the health or safety of the person”.
Applying that legislative criteria to the facts of the case, no error has been demonstrated on the part of the primary judge in finding, as a matter of fact, that the respondent was, on reasonable grounds, concerned with her safety (at [73]). The appellant has failed to discharge the onus which he bears to establish error on the part of the primary judge in respect to that factual finding: Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47].
In that respect, appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]. Far from being improbable, the finding of the primary judge as to the respondent’s concern for her own safety is entirely consistent with the evidence presented. In making that finding, the primary judge had the advantage of hearing and observing the appellant’s evidence and drawing appropriate inferences from both the manner in which he presented and the offensive comments he made in respect to the respondent. The primary judge was justified in drawing that inference on the basis of the facts presented and her Honour’s observations of the appellant: Lee v Lee (2019) 266 CLR 129 at [55] (“Lee”); FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203] referring to Lee at [55].
As best as I can discern from the evidentiary references made in the appellant’s Amended Summary of Argument filed in support of his grounds of appeal, those factual references appear to relate to the appellant’s assertions that the respondent acted in an unreasonable manner in failing to reach agreement with him as to alternative changeover locations to the Suburb S library. Other references concern the appellant’s assertions that the respondent has acted inappropriately at changeover, including making disparaging comments about the appellant to the supervisor in front of the child.
Even taking that evidence of the appellant at its highest, it does not detract from the primary judge’s conclusion that the respondent had a reasonable excuse for failing to comply with the orders if the changeover location remained at the Suburb S library. This was, as I have noted, because the primary judge was satisfied that, in circumstances where the library had been closed during the period of the COVID-19 pandemic to comply with public safety measures, the respondent was concerned with her safety. Having made that finding, it was unnecessary for the primary judge to specifically refer to those evidentiary matters referred to in the appellant’s Amended Summary of Argument.
Moreover, even if there were errors in respect to the primary judge’s findings of fact, as alleged in the appellant’s Amended Summary of Argument, any such errors were not material to the primary judge’s conclusion that the respondent had a reasonable excuse for failing to comply with the orders in circumstances where changeover was to occur at the Suburb S library. In that respect, I note the observation of the Full Court of the Federal Court of Australia in Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [53] that:
In all cases of specific error, the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.
Essentially, the primary judge found that the respondent was justifiably concerned for her own safety if the changeovers were to occur at the Suburb S library, in circumstances where the library was closed as result of the Victorian government’s public safety measures introduced in response to COVID-19. That finding was reasonably open to the primary judge on the basis of the documentary evidence contained in the appeal book. The appellant has not sought to rely on the transcript of the primary proceedings to establish error on the basis of oral evidence presented to the primary judge. I therefore conclude that the appellant has failed to establish appellable error in respect to the primary judge’s finding that the respondent had a reasonable excuse for failing to comply with the relevant orders referred to in contravention counts one through six of the appellant’s contravention application.
Accordingly, the appellant’s grounds of appeal in respect to this issue, which appear to be intermingled amongst several grounds but are substantially set out in Ground 3, are without merit and must be dismissed.
Did the primary judge err in altering the changeover arrangements?
Having regard to the history of the parties experiencing difficulty in providing agreed instructions to a professional contact service which had been engaged to supervise changeovers, it was entirely sensible that the primary judge identified the Suburb S police station as the appropriate changeover location.
The appellant complained that the primary judge should have, instead, nominated a police station that was closer to his residence for changeover. Clearly, there were any number of police stations that could have been selected as appropriate changeover venues. The primary judge noted, however, that the library which was identified by the appellant as an appropriate changeover location was located at Suburb S (Order 7(c)(ii) of the orders).
Further, the child was familiar with Suburb S police station, with it being identified as the changeover location in orders made on 23 September 2020 by the deputy registrar. The primary judge was entitled to have regard to the fact that those orders had been made by consent (at [2] and [104]).
The evidence before the primary judge was that the respondent felt safe with changeover occurring at Suburb S police station. In that respect, at paragraph 47 of her affidavit filed 13 August 2021, the respondent attested that changeover at the Suburb S police station “worked well” with “the presence and availability of the police ensured that the [appellant] modified his behaviour towards [the respondent] and [the respondent] felt that [the child and herself] were safe at the police station.”
The primary judge had regard to the fact that the appellant proposed that the changeover occur at Suburb S police station at the commencement of the child’s time with the appellant and that exchange occur at Suburb Q police station at the conclusion of that time. However, the primary judge noted that, unlike the respondent who presented evidence in respect to the issue, the appellant “did not adduce any evidence as to why Suburb Q police station should be used at the conclusion of time, rather than Suburb S police station for both changeovers as set out in the interim consent order” (at [95]).
Again, in circumstances where the primary judge found that the respondent was understandably concerned for her safety at the point of changeover and in the context of evidence that was presented by the respondent, the findings made by the primary judge that Suburb S police station was an appropriate location for changeover were reasonably open to her Honour; no error has been established in terms of the principles adumbrated in House v The King (1936) 55 CLR 513.
At [106] of the reasons, the primary judge explained why she considered it was necessary for the changeover order to require the appellant to wait inside the police station both prior to and subsequent to changeover to ensure that there were no altercations between the parents and to protect the child from the “parents’ acrimony and conflict”. Again, on the evidence presented in the proceedings, that finding was reasonably open to the primary judge, particularly in the context of the statutory obligation set out in s 60CG of the Act which required the primary judge to consider making an order that would not “expose the person to an unacceptable risk of family violence.”
Insofar as the primary judge modified those orders which the appellant had previously consented to, her Honour modified them in a manner that benefited the appellant by reducing the time that he was required to remain in Suburb S police station from 15 minutes to 10 minutes. The appellant has failed to establish error on the part of the primary judge in so varying the pre-existing consent orders made in September 2021 in that respect.
Did the primary judge err in amending previous orders regarding the child engaging in electronic communication with the appellant?
At [100]–[103], the primary judge explained the reasons for varying the then applicable orders in respect to the child engaging in electronic communication with the appellant as follows:
In relation to the order regarding communication on a Sunday, that order has caused ongoing conflict and tension, and has been the subject of repeated contravention applications. It is apparent from the parties’ evidence that they dispute over where [the child] is to be when she exercises that communication, whether the [respondent] can be nearby, whether the [appellant] speaks to [the child] inappropriately, and whether the [appellant] uses the communication as an opportunity to undermine and denigrate the [respondent]. The [appellant] also made it plain that he was dissatisfied with calls that did not go for the full 10 minutes allowed, complaining that the [respondent] cuts the calls short, or terminates the call when she feels it has gone on too long, and that on occasion [the child] has walked away from the device.
In my view, the order for communication is being used as another and ongoing avenue for the parties to continue their toxic conflict, and that [the child] is regrettably placed as the centre of that. This has to stop.
I am satisfied that the order as set out in the primary orders for communication between the [appellant] and [the child] is no longer in her best interests. Whilst the [respondent] proposed some other arrangement for communication, I have concerns that even as formulated by the [respondent], those calls will continue to be the subject of argument between the parties. [The child] needs to be protected from the conflict and bitter parental dispute, and not repeatedly subjected to that discord and acrimony each Sunday morning when she is at home with [the respondent]. Nor is she assisted by her parents’ returning to court repeatedly over that issue, particularly when it appears she has appropriately been able to engage in communication with the [appellant] outside those prescribed times.
In my view, it is in [the child's] best interests that Order 5(e) be discharged. In its place, I am making an order that [the child] is at liberty to contact each parent at all reasonable times and the parent who has her in his or her care is to facilitate her requests to do so.
The history of this matter, including the extent of litigation which has occurred, provided ample foundation for the factual findings made by the primary judge as set out in those paragraphs. The nature of the conflict between the parties was appropriately described by the primary judge as being “toxic” and, throughout the judgment, the primary judge recorded not only her concerns but also the very real concerns articulated by other judges who have presided in respect to various aspects of the parental conflict. In that context, her Honour’s conclusion that steps needed to be taken to avoid the child being “repeatedly subjected to that discord and acrimony each Sunday morning when she is at home with [the respondent]” were entirely sensible and consistent with the obligation of the primary judge to make such orders as she considered to be in the best interests of the child.
Accordingly, the appellant has failed to demonstrate any error on the part of the primary judge in respect to this ground of appeal.
SUMMARY AND CONCLUSION
Accordingly, while it has been extremely difficult to identify the substance and nature of the appellant’s grounds of appeal, to the extent that I have been able to do so I have found that each ground is lacking in merit and must be dismissed.
For completeness, I would add that, even if I had found error on the part of the primary judge I would not have made the orders sought by the appellant in circumstances where I do not have available the totality of the evidence presented before the primary judge as required by s 35 of the FCFCOA Act. This is the result of the appellant failing to provide the Court with the transcript of the primary proceedings. Further, this is despite the fact that the appellant was cautioned by Austin J as to the difficulty he would face in successfully prosecuting the appeal in the absence of the transcript of the proceedings before the primary judge: Fullmer & Omeros [2022] FedCFamC1A 6.
ORDERS
For all these reasons, the appeal must be dismissed.
In circumstances where each party is self-represented, no issue of costs arises.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 July 2022
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