Gravis & Major
[2010] FamCAFC 239
•1 December 2010
FAMILY COURT OF AUSTRALIA
| GRAVIS & MAJOR | [2010] FamCAFC 239 |
| FAMILY LAW - APPEAL – CONTRAVENTION – whether a remark made by the Federal Magistrate during proceedings indicated prejudgment of one of the alleged contraventions – remark to be considered in context – no error established FAMILY LAW - CONTRAVENTION – reasonable excuse – where the mother claimed the father had agreed to change contract arrangements – whether the Federal Magistrate placed excessive weight on the absence of written agreement – where the father had conceded he had agreed to change contact arrangements in relation to one of the alleged contraventions without written confirmation – the Federal Magistrate had erroneously taken into account the absence of written agreement when finding some of the alleged contraventions proven – appellable error FAMILY LAW - CONTRAVENTION – Adequacy of reasons – relating to the Federal Magistrate’s finding the contraventions were “more serious” contraventions under section 70NAA(3)(c) – where the Federal Magistrate dealt with the contraventions on a global basis – the Federal Magistrate did not adequately consider the individual breaches – the Federal Magistrate did not properly consider the overall circumstances in which the breaches occurred – the finding that the contraventions were “more serious” was not open to the Federal Magistrate – appellable error FAMILY LAW – APPEAL - Appeal allowed – order of the Federal Magistrate set aside – costs certificates granted |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act1981(Cth) |
| Abduramanoski and Abduramanoska (2005) FLC 93-215 CSR Ltd v Della Maddalena (2006) 224 ALR 1 De Winter and De Winter (1979) FLC 90-605 Fox v Percy (2003) 214 CLR 118 Galea v Galea (1990) 19 NSWLR 263 Kirkv Industrial Relations Commission of New South Wales (2010) 239 CLR 531 McClintock & Levier (2009) FLC 93-401 Pearce v The Queen (1998) 194 CLR 610 |
| APPELLANT: | Ms Gravis |
| RESPONDENT: | Mr Major |
| FILE NUMBER: | PAC | 2874 | of | 2008 |
| APPEAL NUMBER: | EA | 56 | of | 2009 |
| DATE DELIVERED: | 1 December 2010 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland, Thackray & O'Ryan JJ |
| HEARING DATE: | 21 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 8 April 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 263 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Livingstone |
| SOLICITOR FOR THE APPELLANT: | McQiu Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Judge |
| SOLICITOR FOR THE RESPONDENT: | Webb Thom & Associates |
Orders
The appeal is allowed.
Order 2 of the orders of Federal Magistrate Dunkley made 8 April 2009 be set aside.
The parties shall on or before 6 December 2010 notify the Appeal Registrar whether they wish to make submissions to the Full Court as to whether the Full Court can redetermine the question of costs before the Federal Magistrate.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Gravis & Major 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 SYDNEY |
Appeal Number: EA 56 of 2009
File Number: PAC 2874 of 2008
| Ms Gravis |
Appellant
And
| Mr Major |
Respondent
REASONS FOR JUDGMENT
The mother has appealed against orders made by Federal Magistrate Dunkley on 8 April 2009 in contravention proceedings brought by the father.
The Federal Magistrate found the mother had contravened parenting orders on seven occasions. He required her to enter into a $5,000 bond to comply with the orders for 18 months (Order 1). He allowed the father two extra weeks with the children to make up for time lost as a result of the contraventions (Order 3). He also ordered the mother to pay the father’s entire costs of $22,162.50 (Order 2).
The Federal Magistrate dismissed one other contravention application brought by the father. That decision was not challenged; however, the finding leading to it has assumed significance in this appeal.
Background
The mother and the father were married in February 1999, and separated in September 2004. There were two children of their marriage, K, born in December 1999 and C, born in November 2003.
Parenting proceedings between the parties culminated in a trial in September 2007. These were resolved by consent orders, which involved the parents having shared parental responsibility and the children living with the mother.
The consent orders provided for the children to spend time with the father each alternate weekend. At the time, the father was living in Canberra and the mother was living in Sydney. The orders anticipated that the father would move to Sydney by the end of July 2008. Pending the move, the father’s weekend time with the children was to alternate between Canberra and Sydney. The father moved to Sydney in June 2008, and shortly thereafter he commenced the contravention proceedings. His complaints related to time he was meant to have spent with the children prior to his move to Sydney.
The contravention application was first listed before a Federal Magistrate on 4 July 2008, at which time it was adjourned to 28 July 2008. The application was then further adjourned and came back before the Court in October 2008. The Federal Magistrate dealing with the matter on that date varied the consent orders and adjourned the proceedings to February 2009 to provide the mother with an opportunity to demonstrate her compliance with the consent orders.
The father’s application asserted that on eight different dates the mother refused to make the children available. When the Federal Magistrate put the charges formally to the mother he reformulated each slightly (without objection) so that the complaint became that the mother did not make the children available to the father on eight nominated dates. Those were:
· 14 September 2007 (“Count 1”);
· 7 December 2007 (“Count 2”);
· 1 February 2008 (“Count 3”);
· 15 February 2008 (“Count 4”);
· 14 March 2008 (“Count 5”);
· 28 March 2008 (“Count 6”);
· 2 May 2008 (“Count 7”); and
· 30 May 2008 (“Count 8”).
The mother denied the contraventions alleged in Counts 1, 2 and 5. She admitted the complaints specified in Counts 3, 4, 6, 7 and 8, but claimed she had a reasonable excuse for not making the children available.
The Federal Magistrate accepted the mother had a reasonable excuse for Count 4, but otherwise rejected her defence.
The conduct of the proceedings before the Federal Magistrate
At the commencement of the hearing, the Federal Magistrate put the various alleged contraventions to the mother. Her counsel informed the Court of her response on each count, as summarised above. It was determined, without any objection, that all counts would be dealt with together.
The mother had filed an affidavit in response to the father’s affidavit in which he had detailed his complaints. She elected to have that affidavit read at the commencement of the hearing. Although the mother bore the burden of proof on those counts where she claimed to have a reasonable excuse, her case proceeded after the father’s case had been presented.
The Federal Magistrate, having heard the oral evidence, proceeded to take submissions, not only in relation to whether the orders had been contravened and/or whether there was reasonable excuse, but also in relation to penalty.
The Federal Magistrate then considered a discrete issue relating to the mother’s application for discharge of the consent orders. He heard submissions and took some further evidence, before reserving his decision on both the contravention application and the application for discharge.
The Federal Magistrate was ready to publish his reasons on 7 April 2009. On that date he advised that his judgment would indicate that all but one of the complaints had been made out. He further indicated that the mother would be required to enter into a bond. The mother indicated that she was not prepared to enter into the bond. The matter was stood over to the following day, at which time the mother agreed to enter into the bond. The reasons for judgment were then delivered and orders made.
The Federal Magistrate’s reasons
The Federal Magistrate commenced by setting out the background. In doing so, he indicated his acceptance of the unchallenged affidavit evidence of the paternal grandmother concerning an incident at a holiday destination on 21 April 2008 (i.e. prior to the occasions which are the subject of Counts 7 and 8).
His Honour then considered each of the complaints in turn.
Count 1
Count 1 related to the weekend commencing 14 September 2007. The consent orders, made 10 days earlier, provided that the father’s weekend time with the children would commence on that date.
The Federal Magistrate recorded the mother’s evidence that the father had agreed “to swap this weekend to the next weekend”, but he also noted that the father had come to collect the children on the date specified in the order. He recorded the father’s contention that he had not agreed to a swap.
The Federal Magistrate said he preferred the father’s evidence. His reasons, in full, read as follows:
The Orders had been made only ten days before. There was nothing to indicate an agreed change. [The Father] had travelled from Canberra to Sydney to the Mother’s residence as required by the Orders.
Count 2
The second count related to the weekend commencing 7 December 2007. The Federal Magistrate noted it was the mother’s evidence that she had advised the father that the eldest child was involved in a Christmas performance at school on the Saturday morning, and would not be available until lunchtime that day. The mother claimed the father had consented to a later pick‑up.
The Federal Magistrate noted the father’s evidence that the weekend commencing 7 December 2007 “was his birthday and for that reason a function had been arranged”. The Federal Magistrate further recorded that the father had not consented to the proposed change, as he was not agreeable to the mother taking the child to the performance in preference to spending time with him for his birthday. He also noted the father’s evidence that the child had only a “minor part” in the production. (We pause to note that his Honour had earlier recorded that the father’s birthday falls on a different date, so the “function” did not fall on his birthday anyway.)
His Honour again found that the father’s evidence was to be preferred. His reasons were once again brief and, in full, read as follows:
[The Father] had again driven from Canberra to Sydney. No corroborative evidence of the agreement was provided. Given the difficulties of the first weekend visit some three months earlier I have no doubt that if an agreement did exist it would have been documented. Having regard to evidence that the Mother gave with respect to later counts I do not accept her evidence when it is in contradiction with the Father’s.
Count 3
This count concerned the weekend commencing 1 February 2008. The Federal Magistrate recorded that the mother’s position was that she had made a “mistake” in not making the children available, because she had not understood the terms of the consent orders. He noted the mother’s evidence that she had recently moved house and that her copy of the orders had been “packed away”.
His Honour recorded that the mother’s excuse for not making the children available was because she had already organised a social event for the eldest child, who wanted to spend time with her friends. He further recorded that the mother had said she had found it too difficult to change the arrangements to ensure the eldest child would be available. He also recorded the father’s evidence that he had explained the effect of the orders to the mother, but that she had still refused to make the children available.
The Federal Magistrate then recorded the submission of counsel for the mother that it was understandable she would be confused about the effect of the orders, as this was the first occasion the children were to spend time with the father immediately following a school holiday. His Honour rejected that argument, saying it was not the first occasion, as the children had gone to their father following the holiday period in October 2007. His Honour further found that the orders were “clear and unambiguous”, and that it was “not believable that the Mother would not have understood [their] very simple terms”. His Honour’s view was that the mother should have insisted on the children going with the father, after he had explained the orders to her.
Count 4
The Federal Magistrate dealt briefly with this count, which related to the weekend commencing 15 February 2008. He recorded that under cross‑examination the father had accepted an agreement had been reached that he would not spend time with the children on that weekend, but would spend time in lieu the following weekend. In these circumstances, his Honour found the contravention was not proved.
Count 5
This count concerned the weekend commencing 14 March 2008. The Federal Magistrate recorded that the mother’s evidence was that an agreement had been reached on 14 March 2008 that the father would not spend time with the children. He recorded that the father’s evidence was that he had come to the mother’s home on both 14 March and 15 March 2008, but that she was not at home on 14 March 2008. The mother’s evidence was the father had not come to her home on 14 March 2008, but had come on the following day.
The Federal Magistrate accepted the father’s evidence and rejected the mother’s, without giving any reasons for doing so (although, as already noted, his Honour had earlier said in dealing with Count 2 that having regard to evidence she gave with respect to “later counts”, he did not accept the mother’s evidence when it contradicted that of the father).
Count 6
This count related to the weekend commencing 28 March 2008. In determining the count had been proved, his Honour made these findings:
41.With respect to Count 6, the Mother’s evidence is that the Father attended at her home but that she did not make the children available. She gave a number of contradictory versions as to what happened on that evening. One version was that [K] was hiding in the house, that it is a two storey house and that she did not know where [K] was. Another version was that [K] on learning that the Father had arrived, went and hid in the house, the Mother found [K], then [K] left the Mother again and hid again, the Mother then followed her around from hiding place to hiding place. Another version given was that she found the child, tried to encourage her but the Child would not go with the Father and then went off and hid. I am more than comfortably satisfied on the contradictory evidence that the Mother gave that she was not telling the truth. The Father’s evidence is contained in paragraphs 26, 27 and 28 of his affidavit. He expanded on his evidence under cross examination saying that the Mother had promised to take the Children to the Royal Easter Show and that they preferred this to spending time with him. The Mother has an obligation under the act to do all that she can do to encourage the children to attend with the Father. I am satisfied that she did not attempt to encourage the Children. I am also satisfied she actively sought to provide alternate inducements to them. In any event, she did not make the Children available. Accordingly I find this count proved.
Count 7
This count concerned the weekend commencing 2 May 2008. The Federal Magistrate observed that the mother had conceded she had not made the children available on this weekend. He recorded that she had said the children were scared of the father because of what had occurred when the children spent holiday time with him at a holiday destination. His Honour recorded that during cross-examination, the mother had given evidence about what had occurred, and he observed that her evidence was “directly contradicted” by what had been said by the father’s mother. His Honour recorded that the grandmother had not been required for cross‑examination and that her evidence corroborated that given by the father.
In these circumstances his Honour accepted the evidence of the grandmother about what had happened. He found there was nothing in the evidence of the grandmother “to conclude that the children were scared by the Father as a result of what happened at [the holiday destination]. To the contrary such fear, if any, would have been caused by the mother”.
His Honour went on to find that the mother had an obligation to encourage the children to spend time with the father, and that she had not done so on this weekend. His Honour therefore did not accept the mother’s excuse.
Count 8
The final complaint concerned the weekend commencing 30 May 2008. The Federal Magistrate recorded the mother’s evidence that the children had refused to accompany the father. He recorded the father’s evidence was that the children had said they did not want to go with him because they had a party they wanted to attend. His Honour commented:
It is not for the Children to make decisions about spending time with their Father. The Mother did not exercise her parental authority, she did nothing meaningful to encourage the Children. The Mother has a responsibility to encourage and ensure that the Children attend. She did not meet this responsibility nor fulfil it.
Having dealt with each of the eight counts, his Honour set out relevant sections of the Family Law Act 1975 (Cth) (“the Act”). He noted that the effect of s 70NAA(3)(c) was that he was required to decide whether or not the contraventions were “less serious contraventions or more serious contraventions”. He observed that if they were “more serious”, then they had to be dealt with pursuant to Subdivision F.
His Honour also referred to s 70NAC, which defines the circumstances in which a person is taken to “have contravened an order”, and he also referred to ss 70NAE(2)‑(5), which explain what is meant by “reasonable excuse” for the purposes of contravention proceedings. His Honour finally referred to s 70NAF, which he said “sets out the standard of proof to be applied, that being proof on the balance of probabilities”, both in relation to the contravention alleged and in relation to the reasonable excuse offered.
His Honour then recorded that he was satisfied on the balance of probabilities with respect to Counts 1, 2, 3, 5, 6, 7 and 8. He also said:
I am not satisfied that the Mother has made out her reasonable excuse with respect to Counts 3, 6, 7 and 8 on the balance of probabilities test and indeed I am satisfied beyond reasonable doubt that the Mother breached the Orders. None of [the Mother’s] excuses related to protecting the health and safety of the Children. They were excuses as to mistake or agreement.
His Honour then considered whether or not the contraventions were to be treated as being “less serious” or “more serious”. He recorded the submission of counsel for the father that:
… the contraventions amount to a serious disregard because of the number of contraventions, the period of time over which the contraventions occurred, that the first contravention occurred within 10 days of the orders being made, that the Father sought to explain the requirements of the orders to the Mother which she disregarded.
He then recorded the mother’s submission that the contraventions were “less serious”, because although they had occurred over a long period of time, “there had also been intermittent compliance with the Orders”.
His Honour found that the contraventions constituted “a serious disregard” of the consent orders:
given the length of time over which the contraventions have occurred given that the first contravention occurred so shortly after the Orders were made, that the breaches continued, and in the face of the Father’s diligent attempts to spend time with the children.
His Honour then moved to the question of the penalty to be imposed. In doing so, he noted the submission of the mother that the fact she had fully complied with the orders since 2 October 2008 was a factor that should be taken into account. He noted the mother now claimed to fully understand and appreciate her obligations under the orders.
His Honour dealt with these submissions by saying:
[i]t was my finding that the Mother has always understood her obligations under the court Orders, but chose to disregard them. Perhaps what is meant is that she understands the serious consequences to her should she further breach these Orders.
The Federal Magistrate found that the mother was now complying with the orders because she was aware of the “significant sanctions that can be imposed”, and that for this reason it was appropriate that the penalty take the form of a bond, rather than a fine or term of imprisonment.
His Honour then set out the provisions of s 70NFB, which he noted “sets out the powers of the Court when there has been contraventions without reasonable excuse, that are more serious contraventions”.
Section 70NFB relevantly provides:
(1) If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b) if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c) if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(a) …
(b) to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c) if the current contravention is a contravention of a parenting order in relation to a child--to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
…
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division…
His Honour then noted the father’s submissions that the mother be placed on a bond; that there be makeup time; and there also be an order that the mother pay “some of the costs of the Father”. He then repeated that part of s 70NFB(1) which provides that where a breach is found to constitute a “serious contravention”, the Court must make an order under s 70NFB(2)(g), unless satisfied it would not be in the best interests of the child to make that order. It will be recalled s 70NFB(2)(g) is the subparagraph authorising the court to order that the person who committed the contravention should pay “all of the costs” of the other party.
His Honour continued:
59.The Father quantifies his costs at $22,162.50. There is exhibited the costs agreement with his lawyers and various invoices and statements of account supporting the quantification. The Mother has been given ample prior notice of this through her solicitors and does not challenge the quantification. Having regard to the many dates this case was before the Court and the level of its complexity costs in excess of the scale provided in the Federal Magistrates Court Rules are warranted.
The Federal Magistrate recorded that the mother was a medical professional, who owns her own home and has an income. He said that undoubtedly an order for costs would have a financial consequence, but it had not been submitted that an order made under s 70NFB(2)(g) would not be in the best interests of the children. He said that had such a submission been made, he would have rejected it as unsubstantiated on the evidence.
His Honour went on:
61.Notwithstanding the Father has failed on one count all of his costs should be paid. The failure of one Count has not resulted in the incurring of any additional hearing costs. The failure has not resulted in the hearing being longer. The corollary is true. No less costs would have been incurred and no further hearing time would have been expended.
The Federal Magistrate observed that a fine would amount to “a double financial penalty” and that imprisonment was not warranted because although the contraventions were “more serious contraventions they are not the most serious examples of contraventions”, and the mother had been complying with the orders since October 2008. His Honour noted that a bond would “act as a deterrence to the Mother with respect to further breaches”. His Honour finally recorded that he intended to allow two make up periods of seven days each, because the father had missed out on a total of 14 nights with the children as a result of the contraventions.
His Honour concluded his reasons by dealing with the mother’s application to discharge the consent orders.
Matters not the subject of appeal
Although the mother originally challenged the Federal Magistrate’s decision to dismiss her application for discharge of the consent orders, that part of her appeal was not pursued.
It is important also to record there were no grounds of appeal directly challenging:
·the decision to deal with all the counts together, including those on which the mother carried the burden of proof by reason of her defence;
·the finding that the seven breaches collectively should be treated as a “more serious” contravention;
·the decision to impose a global penalty, rather than imposing a penalty for each of the seven proven breaches; and
·the acceptance by the Federal Magistrate of the father’s assertion that the weekends which were the subject of the complaints were dates on which the father was prima facie entitled to have the children pursuant to the consent orders.
There may have been significant merit in complaints about some of these matters had they been agitated. However, notwithstanding the quasi-criminal nature of the proceedings, we do not consider it is generally the function of the Full Court to embark upon consideration of issues outside the parameters established by the Grounds of Appeal. We note, however, that counsel for the mother did rely on the inadequacy of his Honour’s reasons in respect of the whole of the reasons for judgment.
The Grounds of Appeal
There were 14 grounds in the Further Amended Notice of Appeal filed on 21 August 2009. In his written submissions, counsel for the mother grouped the grounds under the seven headings below:
·Failure to take into account relevant considerations (Grounds 1 and 8);
·Allowing irrelevant matters to be taken into consideration (No grounds identified);
·Acting upon a wrong principle (Grounds 3, 4, 5, 9, 10, 11 and 12);
·Failure to take into account a material consideration (Grounds 6 and 7);
·Inadequacy of reasons (Ground 2);
·Children not wishing to accompany the respondent (Ground 13); and
·Costs (Ground 14).
We had some difficulty in apprehending the commonality in these groupings, and we note that counsel for the mother departed from them in his oral submissions. In the discussion that follows we propose to discuss the appeal under headings which we consider capture the gravamen of the challenges.
“Done and dusted” – prejudgment of Count 1
Grounds 3 and 4 sought to impugn a remark the Federal Magistrate made during the course of the hearing that Count 1 was “done and dusted”. It was submitted on behalf of the mother that in making this remark:
at such an early stage that [the father] had established a Count on what was an erroneous basis, the [mother] was denied a conventional trial upon that count. What she was in fact accorded was the result first with the trial second.
In oral submissions, reference was also made to the fact that the Federal Magistrate made his remark before counsel for the mother had been permitted to make any submissions on the topic. It was submitted that by this intervention the Federal Magistrate had told the mother that she must fail on this count.
In our view it is important to consider what was said both before and after his Honour made his “done and dusted” remark. The relevant portion of the transcript is set out below. Mr Maddox was appearing for the mother. Ms Judge was counsel for the father and was cross-examining the mother: (Transcript 16 February 2009, pp 32 to 34).
MS JUDGE: Madam, you were aware that the first date for contact - I’ll use the word contact, for time to be spent with your children by their father was 14 September 2007, weren’t you, pursuant to the orders?---Yes.
And you didn’t hand the children over for contact on that week did you?---No.
And your former husband sought contact with the children on that week didn’t he?---Yes.
And the situation is, I put to you, as set out in his affidavit, that your former husband turned up and knocked on the door of your then premises?---I believe so.
Well, when you say you believe so, did you hear him?---From my memory, I would say yes, he did come, on that day.
And I suggest to you that you said to him, “If you do not leave I will call the police”?---No I don’t remember that.
Could you have said that to him?---No.
Are you sure?---Yes.
And you did say to him though did you not, “They are not coming. I don’t care about the orders”?---No I did not say that. I would not say that. I deny that. I believe that [the father] said that and I did not say that.
Well, certainly, from what you told us then, there was no situation where the first week of the contact was changed; my client turned up for his contact didn’t he?---I don’t understand your question.
FEDERAL MAGISTRATE: All right, ma’am, you’ve just told us that he came on 14 September, he knocked on the door?---Mm.
You heard him and you deny that you had a conversation about, “I don’t care about the orders”. So he’s there and he’s knocked on the door?---Yes.
So he’s come?---Yes, he has.
MS JUDGE: And there was no conversation at any time which led to an arrangement where your husband agreed not to have the girls that weekend was there?---Yes, there was, a phone call on approximately the Wednesday before that Friday -Tuesday or Wednesday, and from my understanding he would be coming the following weekend, to pick up the girls. And I was very surprised when I saw him at my door, in fact I was quite scared because I knew that he had driven from Canberra, so I was a bit surprised.
Well, not so much of a surprise that you thought to put it in your affidavit, madam, because in the affidavit that my friend has indicated he is relying upon in these proceedings, that you just heard him cross-examine your husband from, you neglected to mention didn’t you that your husband turned up in any event to collect the children on 14 September?
FEDERAL MAGISTRATE: That count is done and dusted now isn’t it? Do we need anything more on that count? [emphasis added]
MS JUDGE: No, if that is your Honour’s view and your Honour’s view is in our favour, then I won’t take the matter any further.
FEDERAL MAGISTRATE: Well, her evidence is that the father fronted up on that day; she answered the door to him; she was frightened because she didn’t think he was coming, so he’s there.
MS JUDGE: Thank you, your Honour. Well, your Honour having said that
FEDERAL MAGISTRATE: Well, there’s nothing in the other affidavits that she’s filed that would take away from the fact that he’s there and he wants the children.
MS JUDGE: Thank you, your Honour.
FEDERAL MAGISTRATE: Is there, Mr Maddox, there’s nothing in any of the affidavits that I’ve - - -
MR MADDOX: Well, not in the affidavits, there is certainly some in the application though.
FEDERAL MAGISTRATE: In which application?
MR MADDOX: In the father’s application. He’s got the wrong address.
FEDERAL MAGISTRATE: Yes, well, you can talk to me about that.
The latter part of the exchange concerned a “technical point” taken by counsel for the father about the place at which the contraventions were said to have occurred. This was not the subject of any ground of appeal.
In seeking to defend the “done and dusted” remark, counsel for the father submitted that the Federal Magistrate had obviously not accepted the mother’s case that there was an agreement to swap the weekend covered by Count 1 for the following weekend.
Counsel for the father drew attention to the fact that the mother’s counsel was given the opportunity to take up the matter with the Federal Magistrate after he made his “done and dusted” remark. She also noted that the comment had been made during cross‑examination of the mother, thereby relieving her from further cross‑examination. Finally, it was noted that the comment had not prevented the mother from putting her case to the father, because this had been done earlier in the proceedings (Transcript 16 February 2009, p 21).
We do not consider there is any merit in the complaints directed at the “done and dusted” remark. At no time in the hearing below did counsel for the mother take any objection to his Honour having made the remark to which objection is now taken. It is unnecessary to discuss whether this could amount to a waiver, since we are not satisfied that his Honour’s remark, when read in context, could be interpreted as an announcement of his decision on Count 1. Rather, we see it as designed to move the proceedings along, bearing in mind there were still seven more counts to be dealt with.
There was nothing objectionable in his Honour intervening in the way he did, at the point he did. As Kirby ACJ (as he then was) said in Galea v Galea (1990) 19 NSWLR 263 at 279, “whilst patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings, and the avoidance of unnecessary delay, including to other litigants awaiting their hearing”.
The fact the Federal Magistrate’s intervention should not be interpreted as prejudgment can also be seen from his response when counsel for the father asked him to confirm that Count 1 had been decided in favour of the father. In replying, his Honour simply noted that the evidence was that the “father fronted up” on the day and that the mother was “frightened because she didn’t think he was coming”. Those comments encompass, albeit in short form, the competing propositions – namely the father had come to the mother’s home (because he believed that the arrangement was for contact to occur that weekend) and the mother was surprised (because she believed an arrangement had been made for the visit not to occur that weekend).
Both parties had, by that stage, given their evidence on what had occurred. Importantly, the mother had been cross-examined on her primary assertion that the parties had reached an agreement to swap the weekend, so that the child K could attend a party (see paragraph 7 of her affidavit filed 4 July 2008). Thus, she had been cross-examined on the only matter she had put in her defence. The fact the father had turned up to collect the children was not in issue. In these circumstances, the Federal Magistrate can be seen as taking the view he had heard all the evidence that could usefully be given. The outcome was thereafter dependent upon his assessment of credibility. It was in that context that his Honour said the matter was “done and dusted”.
The consequences that should have flowed from the dismissal of Count 4
There were a number of grounds which were based on the reason given by the Federal Magistrate for dismissing Count 4. These assert that his Honour:
1.…failed to take into account adequately a material consideration namely that the father had permitted a charge for which there was no basis, Count 4, to proceed.
…
6.…erred in making findings that were inconsistent with a finding that the parties had been willing in the past to agree between themselves to change weekends.
7.…erred in finding that agreements to change arrangements between the parties would have been documented when the evidence showed that the parties had entered into more than one agreement and that those agreements had not been documented.
8.…erred in not concluding that the [father] had agreed to accept make up time in discharge of the [mother’s] alleged breach complained of as Count 3.
Counsel for the mother noted that the defences to Counts 1, 2, 3 and 5 were that agreements had been made to swap weekends or for different collection arrangements. He submitted that the reasoning of the Federal Magistrate for the dismissal of Count 4, for which the same defence was offered, should have been critical to the assessment of the father’s credibility on the other counts.
It will be recalled that Count 4 concerned the weekend of 15 February 2008, and that the Federal Magistrate found the father had conceded there had been an agreement to swap that weekend for the following weekend. Counsel for the mother submitted that this finding should have resulted in the father being “regarded as an individual who has prosecuted a claim seeking serious sanctions … where evidence which was entirely exculpatory of the [mother] had not been disclosed until cross examination”. Instead, his Honour had dealt with the dismissal of Count 4 in the “briefest of terms”, and had failed to address adequately how the dismissal of that count could stand with the upholding of the remaining counts, but in particular Counts 1, 2, 3 and 5.
It was submitted that whether the father had merely forgotten the agreement, or had deliberately suppressed evidence about it, his evidence in relation to other counts should not have been preferred over that of the mother. It was asserted that his Honour should instead have been left in doubt as to whether the parties were prepared to reach verbal agreements to swap dates, and whether the father could accurately recall events and discussions.
Counsel for the father submitted in response that the finding concerning Count 4 was made on the basis of evidence peculiar to that count. She directed our attention to the father’s evidence on this count and submitted there was no foundation for the proposition that his evidence should have dictated findings concerning his credibility in relation to the other counts.
It was further submitted there was much evidence given by the mother in relation to all of the allegations, but in particular the event she relied upon to establish reasonable excuse for the breaches alleged in Counts 7 and 8 (the holiday incident), which entitled the court to prefer the father’s evidence. It was submitted that the mother’s evidence about what happened at the holiday destination was “completely discredited”. Counsel for the father also referred to the mother’s evidence that she had formed the view, from 2 May 2008 onwards, that the children were not going with their father and that she was not exerting any influence to cause them to go.
In her oral submissions, counsel for the father also directed our attention to evidence given by the mother in her affidavit where she said that after the events of 14 September 2007 (the weekend covered by the first count) she had been “very careful to not request any changes to the orders”. It is to be noted, however, that the Federal Magistrate did not accept the mother’s evidence where it conflicted with the father’s and his evidence was that the mother did seek such changes after 14 September 2007.
There would be merit in the submissions of counsel for the mother if consideration was confined to the findings made by the Federal Magistrate. In dealing with Count 4, his Honour had accepted there was an agreement to swap one weekend for another. This agreement was not recorded in writing. Logically, this should have negated any assumption that any agreement to vary other weekends would have been recorded in writing. Yet that is the basis upon which his Honour determined Count 1, in relation to which he found “there was nothing to indicate an agreed change”, and Count 2, in relation to which he observed that “no corroborative evidence of the agreement was provided”, and where he said he had “no doubt that if an agreement did exist it would have been documented”.
Similar reasoning may also have impacted upon his Honour’s finding in relation to Count 5, although he made no reference to the lack of corroboration of the alleged oral agreement when dealing with that count.
There was no cross-appeal by the father against the decision on Count 4. Nor was a Notice of Contention filed to seek to uphold his Honour’s decision in relation to other counts on the basis that he had erroneously decided that an oral agreement had been reached in relation to the weekend covered by Count 4. The question then arises whether it is permissible to look beyond the finding his Honour made. In this regard, it is to be observed that whilst counsel for the father said that the finding was “generous” to the mother, she nevertheless accepted the finding for the purposes of the appeal. However, she went on to submit that:
even if it was open to the court to make that finding on the evidence, the finding was not one that should or could have coloured, and should have influenced [the Federal Magistrate’s] assessment of the [mother’s] credit and the veracity of the other complaints… (Appeal transcript, 21 May 2010, p 25).
Section 93A(2) of the Act provides that “in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact…”. Notwithstanding the absence of a formal challenge, we consider it is permissible to examine the evidence given by the father which led to the finding that he had conceded there was an agreement to swap one weekend. It is only by looking at that evidence that we can determine whether there is substance in the proposition that his Honour erred in placing weight on the absence of a written agreement concerning alleged arrangements to swap other weekends.
The father’s evidence concerning Count 4 appeared in paragraph 17 of his affidavit filed 18 June 2008, and was in the following terms:
On the weekend commencing 15 February 2008, under the Orders I was to spend time with the children in Sydney. On 13 February 2008 I contacted the Respondent to confirm that I would be spending time with the children. The Respondent said words to the effect of “The girls will not be available. I have arranged a party with friends and I want to take the girls with me.” I said words of the effect “You must stop arranging parties for the girls when they are due to spend time with me, who is the party for” The Respondant said, “It was for an adult cousin of mine” I said words to the effect of “It not even a child’s party, I am coming up to pick them up on Friday [The father’s daughter of another relationship] is looking forward to seeing them” (typographical and grammatical errors in the original)
It will be observed that the father did not state that he actually came to the mother’s home to collect the children on 15 February 2008, notwithstanding his assertion that he informed the mother he intended to do so. This, in itself, distinguishes Count 4 from other counts on which the father succeeded because on each of those other occasions the father attended to collect the children.
In any event, when it was suggested to the father in cross-examination that there had been a number of agreements to swap weekends, he answered:
Typically yes, I wouldn’t call it swap, the way it’s happened is I’m - over and above some of these contraventions there’s been others as well, that I haven’t documented, and usually it’s “You can’t have the children this weekend” and then through conversations, the following weekend, I get to have the children so I do turn up. That has happened. But there are many occasions that that has happened and it’s not listed in these contraventions. Usually it’s a unilateral decision and I try to - because I haven’t seen the children for three or four weeks at that time, I usually come and see them when - and that’s happened not a lot but a couple of times. (Transcript, 16 February 2009, p 22)
Later in the cross‑examination of the father, this exchange occurred:
And the issue was still alive on 15 February 2008, that’s your next alleged contravention - your Honour this is paragraph 14 of the mother’s affidavit - but there was still some dispute with the two of you about which weekend was the proper weekend wasn’t there?---Yes, [the mother] just didn’t – couldn’t - she wouldn’t agree - not agree, but she couldn’t understand the orders and I was trying to adhere to the orders. So that would’ve been 14 days after the time I couldn’t see the girls in the orders. [The mother] had to have them on the following weekend, which I could not do, and the next weekend now, so we’re up to the third weekend now. (Transcript 16 February 2009, p 24)
Well, they came on 22 February 2008 didn’t they, you spent time with them that weekend?---Yes, that’s because I hadn’t seen them, like I said, for four weekends by that time, and at that time, I was going to take any weekend with them, outside the orders.
Counsel for the mother drew attention to the fact that nowhere in his affidavit, when dealing with Count 4, did the father mention that he had make-up time with the children on the weekend of 22 February 2008. (We observe, and the father admitted, that on 22 September 2007 he had make-up time.) It was submitted that his failure to mention that fact was critical when it came to assessment of the credibility of the parties. It was further submitted that the fact that the weekend of 15 February 2008 was swapped for the following weekend, meant that the mother’s explanation that she and the father had agreed to swap other weekends was “rendered considerably more probable and it also means that the father is prepared to make allegations against the mother which are incorrect”.
Reference was also made to the authorities which emphasise the advantages enjoyed by trial judges in assessing the credibility of parties. For example, in Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ said at [23] (footnotes omitted):
… [The appellate court] must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
However, there are well established limits on the deference which needs to be paid by appellate courts to findings of fact made by trial judges. These were summarised by Kirby J in CSR Ltd v Della Maddalena (2006) 224 ALR 1 at [21] and [22] (footnotes omitted):
Even in the case of expressed credibility findings, the statutory duty to conduct a real “rehearing” remains. It may sometimes justify reversal of a decision by a primary judge who has “failed to use or has palpably misused his advantage” or where “incontrovertible facts or uncontested testimony” demonstrates the findings to be erroneous; or where they are “glaringly improbable” and “contrary to compelling inferences”.
However, where the conclusion of the primary judge depends on inferences drawn from undisputed facts or facts that have been found but can equally be redetermined by the appellate court, without relevant disadvantage, the duty of the appellate court is clear. It derives from the parliamentary enactment. It “will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it”.
We accept it may have been appropriate for the father to have acknowledged in his affidavit that not only did he not come to collect the children on the weekend covered by Count 4, but also that he was permitted to have the children on the following weekend. This would, at the very least, have been relevant to a determination as to whether the contravention (if proven) should be treated as “more serious”. It would also have potential relevance to the penalty, if any, to be imposed.
The father’s failure to disclose potentially relevant matters in relation to one count does not, however, lead inevitably to a conclusion that he was not a credible witness and that his version of events should not have been preferred when other counts were being considered. However, the father’s own evidence established that apart from the weekend relating to Count 4, there were “many occasions”, which were not the subject of any contravention application, when after discussion with the mother, the father did not come to collect the children on the weekend to which he was entitled to spend time with them, but came on a different weekend instead.
It is true the father said these arrangements to swap weekends were usually made following “a unilateral decision” of the mother; however, the fact remains he demonstrated his acceptance of her proposals by not attending to collect the children at the appointed times. The mother would have been entitled to view such conduct as demonstrating there was “agreement” to swap weekends, even if she also knew the father would have preferred to come on the nominated dates. In summary, it could be said the father acquiesced to the “breaches” of the consent orders.
It needs to be remembered when dealing with orders involving a fixed “contact” regime that children are not parcels to be passed backward and forward at the convenience of the parents. Children have lives and routines of their own. They do receive invitations to birthday parties of friends, often at short notice. They do take part in school productions, which are commonly very important to them, no matter how “minor” their role in the production may be perceived. These are not things over which the parent with whom the child is living has much, if any, control.
In our view, responsible parents will see the court orders as providing a template around which they can build their time with their children but, in doing so, will adopt a flexible and commonsense approach so as to promote the child’s happiness and well being. Of course, if the parents are unable to reach agreement about a departure from the strict terms of the orders, then the parent entitled to nominated time with the child can insist upon strict compliance (provided the circumstances are not such as to provide the other parent with a “reasonable excuse” to breach the orders).
In the present case, there appears to have been a degree of flexibility adopted by the father, in that he acknowledged he gave up time he was entitled to have with the children on many weekends on the basis that he had them on other occasions instead. What is of critical importance for this appeal is that there is no evidence to suggest that on any of those occasions was the arrangement recorded in writing.
Accordingly, we consider that the Federal Magistrate erred in placing the weight he did on the absence of written confirmation of what the mother claimed were agreements to swap one weekend for another. The error was particularly manifest in the case of Count 2 (where his Honour said that he had no doubt such an agreement would have been recorded in writing); however, in our view it would also be unsafe to allow the decisions in relation to Counts 1 and 5 to stand, given that in each instance there is reason to consider his Honour took into account the absence of a written agreement when finding the contravention to be proven.
We accept, as already noted, that Counts 1, 2, and 5 all related to occasions when the father actually attended to collect the children, whereas on the other occasions when arrangements were changed it seems he did not attend. This fact would tend to provide strong support for the father’s contention that on those occasions he had not agreed to swap, since he would not have travelled all the way from Canberra to collect the children (albeit in the case of Count 2 the mother had proposed only a later collection time after the Christmas production concluded).
Ultimately, however, the fact there was evidence which could have supported the findings made by the Federal Magistrate does not mean that the findings should stand. The remarks of Gibbs J in De Winter and De Winter (1979) FLC 90-605 at 78,092, albeit in the context of mistakes made in the exercise of judicial discretion, are instructive:
There are many other authorities … that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
… The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
Similar considerations apply in relation to findings of fact leading to a determination on the credibility of witnesses. In our view, it cannot safely be said that the Federal Magistrate’s decision to reject the mother’s evidence about there being an agreement to swap weekends was so plainly correct that it should stand in circumstances where his Honour took into account a consideration that was not open to him – i.e. an assumption that any agreement would be recorded in writing.
Ground 8 (which is directed only to Count 3) is in a different category, notwithstanding the fact some effort was made on behalf of the mother to link her position on Count 3 with Counts 1, 2 and 5. In his oral submissions, counsel for the mother noted that the father had acknowledged he had spent time with the children on the weekend of 22 February 2008, to which he was not entitled pursuant to the consent orders. It was submitted this time could have been referrable to the time he was meant to have with the children on 1 February 2008 (which was the subject of Count 3).
The difficulty with this proposition is that in her affidavit evidence responding to Count 3 the mother did not suggest that an arrangement had been made for the father to spend time with the children on 22 February 2008 in order to make up for the time he did not spend with them on 1 February 2008. Her defence to Count 4 (which related to the weekend commencing 15 February 2008) was that an agreement had been reached that the father would spend time with the children on the weekend of 22 February 2008. Her defence was accepted and Count 4 was dismissed.
It was only put to the father in cross-examination that he had seen the children on the weekend of 22 February 2008 in order to make up for one of the two weekends he had missed earlier in February 2008. (Transcript 16 February 2009, p 27). It was never part of the mother’s case that there had been an agreement that the weekend of 22 February 2008 had been swapped for two weekends missed earlier in that month. Her defence to Count 3 was that she had misunderstood the terms of the order. That defence was rejected, and none of the arguments advanced on behalf of the mother demonstrated error in his Honour’s decision on that point.
For the reasons given, we conclude there was appealable error in his Honour’s treatment of Counts 1, 2 and 5, but not in his treatment of Count 3.
Variations of agreements
Ground 5 asserted that “the learned Magistrate erred in concluding that a party who agrees to a change in parenting arrangements may unilaterally rescind the agreement by attending for time”.
Nothing in the Federal Magistrate’s reasons establishes that he concluded that agreements to swap time could be unilaterally rescinded by the father attending at the time specified in the orders. His dismissal of Count 4 establishes that he accepted it was open to the parties to enter into agreements to change nominated times. His treatment of the other counts did not proceed on the basis that the father was entitled to rescind an agreement, but rather on the basis he had concluded that an agreement had not been reached.
Failure to have regard to the terms of the contraventions alleged
Grounds 9, 10 and 11 are directed to alleged dissonance between the behaviour of which the mother was accused and the behaviour which was found to constitute a breach of the orders. The grounds were as follows:
9.That the learned Magistrate erred in failing to have due and proper regard for the terms of the complaints made by the Respondent as pleaded in the Application.
10.That the learned Magistrate erred in concluding that Counts 1-3 and 5-8 had been established when the conduct alleged by those Counts was different to the conduct which His Honour found resulted in each Count being proved.
11.That the learned Magistrate erred in having regard to matters which were extraneous to the application, namely, whether the mother had refused to allow time on any of the occasions complained of.
Notwithstanding the apparent breadth of these grounds, the written submissions in support of them appeared to be confined to the findings his Honour made in relation to Count 8 (Mother’s Summary of Argument, p 6). The father’s written submissions did not address this aspect of the complaint.
In his oral submissions, counsel for the mother effectively extended the scope of these complaints to cover Counts 6 and 7, as well as Count 8 (Transcript 21 May 2010, pp 8-10). Counsel’s primary submission was that whilst all of the counts were framed in exactly the same way, the forms of behaviour about which the father complained differed from count to count. It was submitted that the father had failed to comply with the Rules because the alleged contravention had not been stated with precision. In support of this proposition, counsel drew attention to the instruction contained in the prescribed form for such applications, which requires the applicant to “state precisely what the respondent did or did not do which you allege amounts to a contravention…”
There are, however, other parts of the prescribed form which we consider material to consideration of this complaint. First, the form itself instructs the applicant, “Do not set out the evidence upon which you rely to prove the alleged contravention”. The form goes on to draw attention to the necessity for the applicant to provide an affidavit setting out the evidence relied upon. Furthermore, the form gives examples of how various types of contravention are to be pleaded. The first example is, “The respondent without reasonable excuse refused to allow the applicant to spend time with the child John Citizen”. This was precisely the formulation used by the father for all of his complaints, albeit they were amended slightly by the Federal Magistrate when they were put to the mother at the outset of the hearing.
Notwithstanding what is contained in these other parts of the prescribed form, counsel for the mother submitted that it was inappropriate for all of the contraventions to be drafted in the same fashion when there were different circumstances associated with each complaint. He submitted that given the way the complaints were formulated, the Federal Magistrate had erred in considering matters such as whether or not the mother had fulfilled her “parental responsibilities”. To similar effect, he submitted that the proceedings were not “a broad-ranging social science inquiry into what my client should have done or what she could have done better”.
Counsel for the mother was also critical of his Honour for having placed what appeared to be “great significance” on the fact that the paternal grandmother was not cross-examined. His submission was that the content of the grandmother’s affidavit was irrelevant, as it fell outside the ambit of the actual complaints brought against the mother – namely that she refused/failed to make the children available to the father on nominated dates. (The holiday incident, about which the grandmother gave evidence, did not occur on any of the days that were the subject of the contravention complaints.)
Counsel for the mother properly conceded that when there is an order for a parent to spend time with a child, the other parent “is not entitled to sit there or stand there [at a contact handover] with their arms folded and say, ‘Well, there’s the door of dad’s car. You can get into it or not as you see fit.’”. He acknowledged that such behaviour was “not an exercise of parental responsibility and … does not comply with the Act”. However, he submitted there had been no reference in any of the complaints brought against the mother that she had behaved in this way. He acknowledged that if such a complaint been made, the father “may well have [had] a very good case, but that’s not what was alleged”. He submitted that had such a complaint been made, there would have been a different inquiry, with different evidence required.
In considering the merits of the propositions advanced on behalf of the mother it is important to recall the quasi-criminal nature of contravention proceedings and the serious consequences that can flow from a breach being proven, especially those dealt with as being “more serious”, where the penalties include imprisonment. (Lest there be any doubt that contravention proceedings involving “more serious” breaches are to be treated as quasi-criminal, see paragraph 261 of the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill (2005)(Cth).)
In Kirkv Industrial Relations Commission of New South Wales, the majority of the High Court said (supra at [26]) (footnotes omitted):
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.
The common law requirements are echoed by the instruction in the prescribed form directing the applicant to “state precisely what the respondent did or did not do which you allege amounts to a contravention…”
In order to appreciate what behaviour constitutes a “contravention” it is necessary to have regard to two provisions of the Act, namely s 65N and s 70NAC.
Section 65N provides as follows:
(1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.
(2) A person must not:
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order.
Section 70NAC relevantly provides 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;
…
No submissions were made as to how these provisions might impact on the general proposition advanced by counsel for the mother in support of Grounds 9, 10 and 11. No point was taken at trial concerning a lack of specificity in the complaints concerning the way in which the mother had “refused” or “failed” to make the children available to spend time with the father. More importantly, the father did not need to prove the contraventions alleged in Counts 6, 7 and 8, because the mother admitted them. The only issue raised was whether she had a reasonable excuse, and on this issue the mother bore the burden of proof.
Once that point is appreciated, Grounds 9, 10 and 11 must be treated as misconceived, since they are not directed to the Federal Magistrate’s finding the mother had not established reasonable excuse, but rather are directed to a matter that the mother had conceded at trial – namely that she was in breach of the orders in the manner alleged in the complaints.
Finding that the mother had not established a reasonable excuse
Ground 12 asserts that the Federal Magistrate erred in concluding that the mother did not have a reasonable excuse for the breaches alleged (and admitted) in Counts 6 and 7. These were the counts relating to weekends when the children were said to have been frightened to go on the visit with their father because of what had occurred during a previous visit.
The summary of argument of the mother did not touch on this ground, nor did her counsel refer to it in his oral submissions. The ground itself provides no detail to indicate how the Federal Magistrate was said to have erred in finding as he did. We find no merit in the complaint.
Acquiescence relating to Count 8
Ground 13 is directed to the Federal Magistrate’s finding in relation to Count 8, which concerned the time the children were meant to spend with the father on 30 May 2008. It asserts that his Honour “erred in not finding that the [father] had not [sic] acquiesced in the children not accompanying [him]”.
The written submissions made on behalf of the mother expressly directed to Ground 13 traversed complaints already discussed about the Federal Magistrate having undertaken a more “free ranging” enquiry than was permitted by the terms of the counts. As already noted, those submissions overlooked the fact that the mother conceded she had breached the orders, and hence the only issue was whether she had a reasonable excuse. The written submissions made on behalf of the father, understandably, responded to the submissions made on behalf of the mother, rather than addressing the ground itself.
Although not expressly directed to Ground 13, we note that elsewhere in the mother’s written submissions it was asserted that the Federal Magistrate had not grappled with the father’s own evidence relating to Ground 8, in which he conceded he had agreed to the child K attending a party rather than spending time with him.
We do not intend to discuss all of the evidence given by the father on this issue, both in his affidavit (paragraph 51) and in the course of cross-examination (Transcript 16 February 2009, p 26). Whilst the father’s versions of events do not necessarily sit comfortably with each other, we accept there could be some basis for concluding that he did “acquiesce” in the children not accompanying him. The difficulty again, however, is that the mother conceded that her own behaviour constituted a breach of the order. We do not see how “acquiescence” on the part of the father in such circumstances could constitute “reasonable excuse” on the part of the mother. If the father did not insist on taking the children with him when he came to collect them, that fact went to the proof of the complaint itself, not to the establishment of “reasonable excuse” on the part of the mother.
Inadequacy of reasons
By Ground 2 the mother made a generalised claim that the Federal Magistrate’s reasons were inadequate. The written submissions in support of that ground referred only to the reasons given by his Honour for two counts (1 and 5), in relation to which it was said that it was not possible to follow his reasoning. But as we have earlier noted, the oral submissions of counsel for the mother were not so confined (Transcript, 21 May 2010, p 15).
In relation to Count 1, it was submitted on behalf of the mother that:
In essence the reasons … were no more than: parties who have recently obtained consent orders do not change arrangements without a written agreement to the contrary. There is nothing in the reasons or the evidence to suggest that this reasoning applies in cases generally or this case in particular. Indeed the reverse is the case, many parties will agree to variations in the immediate aftermath of a contested hearing and there are many cases where such changes are appropriate. Similarly in many such cases an element of trust and a desire to keep correspondence and documentation to a minimum is a worthy aim of parents.
In dealing with that submission, it will be remembered that the consent orders provided that the first contact weekend was to occur 10 days later. In our view, his Honour was entitled to place some weight on that fact, since the proximity of the agreement with the nominated commencement date logically made it less likely that the parties would have reason to agree to a variation. The combination of that finding with the fact the father travelled to Sydney to collect the children would, in our view, have been sufficient to justify his Honour’s finding, were it not for the fact that he also took into account the absence of written corroboration in circumstances where there was no corroboration of other agreements to similar effect. We have already indicated that we find merit in the complaint directed to the latter factor.
Counsel for the mother further submitted that the Federal Magistrate’s reasons for finding that Count 5 was established constituted no more than a recitation of the evidence of the parties and a statement that his Honour accepted the father’s evidence for reasons he did not make clear. It was suggested that the reasons do not allow the appellate court to follow the chain of reasoning, since his Honour did not go on to say on what basis he had accepted the father’s version over the mother’s version.
We have already found merit in the complaint concerning Count 5 because of concerns that the Federal Magistrate’s finding was based in part on the absence of written corroboration of the agreement alleged by the mother. Were it not for that factor, we would have found no merit in the complaint that his Honour failed to give adequate reasons for his credibility finding.
We do, however, consider there is substance in the general complaint about lack of adequate reasons insofar as this complaint is directed to his Honour’s reasoning that the offences were “more serious”.
It is useful at this point that we repeat paragraph 51 of his Honour’s reasons for judgment:
Given the length of time over which the contraventions have occurred given that the first contravention occurred so shortly after the Orders were made, that the breaches continued, and in the face of the Father’s diligent attempts to spend time with the children, I find that the contraventions to be a serious disregard of the courts orders.
Division 13A of Part VII of the Act deals with the consequences of failure to comply with orders and other obligations that affect children. Subdivision E of Division 13A deals with “less serious” contraventions and Subdivision F deals with “more serious” contraventions. The structure of the Division is explained by Finn J in McClintock & Levier (2009) FLC 93-401 at paragraphs 9, 12, 13, 14, 20, 21 and 22-30 of her Honour’s reasons. Paragraphs 9, 13 and 14 of her Honour’s reasons are relevant to this appeal. They provide:
9. The first section of Division 13A, being s 70NAA, which is in Subdivision A, explains that the division:
… deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children (s 70NAA(1)) (emphasis added).
…
13. The circumstances in which each of Subdivision E – Contravention without reasonable excuse (less serious contravention) – and Subdivision F – Contravention without reasonable excuse (more serious contravention) – apply are explained in the first sections of each of those Subdivisions, being respectively s 70NEA and s 70NFA:
70NEA(1) Subject to subsection (4), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies;
and, if the primary order is an order for the maintenance of a child, this Subdivision applies irrespective of the period since the current contravention occurred (original emphasis).
(2) For the purposes of paragraph (1)(d), this subsection applies if no court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(3) For the purposes of paragraph (1)(d), this subsection applies if:
(a) a court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court, in dealing with the current contravention, is satisfied that it is more appropriate for that contravention to be dealt with under this Subdivision.
(4) This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order (emphasis added).
70NFA(1) Subject to subsection (2), this Subdivision applies if:
(a) a primary order has been made, whether before or after the commencement of this Division; and
(b) a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c) the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d) either subsection (2) or (3) applies (original emphasis).
Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order (emphasis added).
(3) For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a) made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b) under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4) This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5) This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
14. It appears from s 70NEA(4) and s 70NFA(2)(b) that the essential difference between the circumstances in which Subdivision E or Subdivision F will apply is that in the latter case the court must be satisfied that the person who contravened the primary order “has behaved in a way that showed a serious disregard of his or her obligations under the primary order”. (The expression “primary order” is defined in s 4 to mean “an order under this Act affecting children and includes such order as varied”).
An earlier Full Court in Dobbs & Brayson (2007) FLC 93-346 also considered the “scheme” provided by Division 13A. At paragraph 43, the Full Court discussed, albeit in the context of an appeal against a sentence of imprisonment for a more serious contravention, the effect of subdivision F. Their Honours said:
As earlier indicated, Subdivision F only applies to “more serious” contraventions. Essentially a contravention is only so regarded if the court is satisfied that the contravener has either showed a “serious disregard of his or her obligations” (s 70NFA(2)(b)), or been dealt with in certain ways in respect of an earlier contravention (s 70NFA(3)). Moreover, a court must not sentence a contravener to imprisonment unless satisfied that it would not be appropriate to deal with the contravention by other available order or orders (s 70NFG(2)). The imposition of these pre-conditions to the making of certain orders might invite the interpretation that it is those pre-conditions that are the “grounds for making” those certain orders, as to which grounds the court must be satisfied beyond reasonable doubt.
We observe that the term “more serious” is not defined in the Act. It is instructive, however, to refer to the Explanatory Memorandum mentioned earlier, which states at paragraphs 307 and 308:
Subsections 70NFA(2) and (3) clarify when a contravention is of a more serious nature such that Subdivision F applies. Under subsection 70NFA(2), this will be the case even if no court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person, yet the court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order. Thus a person who only commits one contravention can be immediately dealt with under this Subdivision if they show serious disregard for their obligations. What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order. In such cases, the court will deal with the matter under Subdivision F, which requires the court to consider imposing more serious penalties ranging from community service orders to fines and imprisonment.
Subsection 70NFA(3) clarifies that a contravention is of a more serious nature, such that Subdivision F applies, if a court has previously imposed a sanction, taken action, or adjourned proceedings under paragraph 70NEB(1)(c) in respect of a contravention by the person. Thus where there have been repeated breaches the matter would ordinarily be dealt with as a more serious contravention under Subdivision F.
Having regard to the structure of the division and the explanation of “more serious” in the Explanatory Memorandum, we turn to the facts in this case.
In accordance with Order 2.1 of the consent orders of 4 September 2007 the children were to spend from Friday 14 September 2007 to Sunday 16 September 2007 with the father. The father did not spend any time with the children and he contended that the mother failed to make the children available. This was referred to as Count 1 and the mother denied the allegation. However, the children spent from Friday 21 September 2007 to Sunday 23 September 2007 with the father.
In accordance with Order 2.4 of the consent orders the father was then to spend time with the children from Saturday 29 September 2007 to Wednesday 3 October 2007. However the children were with the father from 26 to 30 September 2007.
The last day of the September/October 2007 public school holidays was Friday 12 October 2007 and thus in accordance with Order 2.4 of the consent orders the children were to spend time with the father commencing from Friday 12 October 2007 to Sunday 14 October 2007. We observe that Order 2.4 provided that “for this period only alternate weekend time shall recommence on Friday 12 October 2007”. This had the consequence that in accordance with the consent orders the children were to spend the following weekends with the father:
· 12 to 14 October 2007
· 26 to 28 October 2007
· 9 to 11 November 2007
· 23 to 25 November 2007
· 7 to 9 December 2007
· 21 to 23 December 2007
We observe that the public school holidays commenced on Monday 24 December 2007.
In her affidavit sworn 4 July 2008 the mother deposed that the father spent all but two weekends with the children during the final school term in 2007. The two occasions where the children did not spend time with the father include:
· One of the weekends between 12 October 2007 and 11 November 2007 where the Mother deposed in her affidavit sworn 4 July 2008 that the father did not see the children as he was skiing in Japan.
· On 7 December 2007, where the father contended that at 7.00 pm the mother failed to make available the children to spend time with the father. This was the second count and the mother denied the allegation.
The children spent 25 and 26 December 2007 with the father pursuant to Order 6 of the consent orders of 4 September 2007.
In accordance with Order 2.5 of the consent orders the father was to spend time with the children from 9 to 14 January 2008 and from 22 to 27 January 2008. The children spent 9 to 12 January 2008 and 21 to 25 January 2008 with the father.
Pausing here, in 2007, with the exception of the occasion when the Father went to Japan, there was only one weekend when the children did not spend time with the father and no make up time was made available. The father and the children spent time together during the school holiday periods.
The December 2007/January 2008 public school holidays finished on Monday 28 January 2008 and school resumed on Tuesday 29 January 2008. The father had last spent time with the children on Friday 25 January 2008.
In accordance with Order 2.1 of the consent orders the children were to spend the following weekends with the father:
· 1 to 3 February 2008
· 15 to 17 February 2008
· 29 February to 2 March 2008
· 14 to 16 March 2008
· 28 to 30 March 2008
· 11 to 13 April 2008
We observe that the public school holidays commenced on Monday 14 April 2008.
The mother deposed that the children spent the following time with the father:
· 22 to 24 February 2008
· 29 February to 2 March 2008
· 14 to 16 March 2008
· 28 to 30 March 2008
The father contended that on 1 February 2008 the mother failed to make the children available to spend time with the father. This was the third count. The mother admitted the allegation but offered a reasonable excuse. In cross-examination the father admitted that the mother offered him the following weekend of 8 February 2008 (Transcript, 16 February 2009, p 23).
The father contended that on 15 February 2008 the mother failed to make the children available to spend time with the father. This was the fourth count. The mother admitted the allegation but offered a reasonable excuse. However the children spent 22 to 24 February 2008 with the father which was not a scheduled weekend. This was admitted by the father (Transcript, 16 February 2009, p 24). We also observe that in cross-examination the father conceded that there was “still some dispute … about which weekend was the proper weekend” and “she couldn’t understand the orders and I was trying to adhere to the orders” (Transcript, 16 February 2009, p 24). Later he admitted that there was a dispute “about which weekend was the proper weekend of the start of the 2008 year” (Transcript, 16 February 2009, p 27).
The father contended that on 14 March 2008 the mother failed to make the children available to spend time with the father. This was the fifth count. The mother denied the allegation. The cross-examination of the mother suggests that the child C spent 15 and 16 March 2008 with the father (Transcript, 16 February 2009, pp 42 to 45).
The father contended that on 28 March 2008 the mother failed to make the children available to spend time with the father. This was the sixth count. The mother admitted the allegation but offered a reasonable excuse. This was the Easter holiday period. The evidence is confusing. The father may have spent time with the child C (Transcript, 16 February 2009, p 47). In cross-examination the father admitted that he spent time with the children on 30 March 2008 (Transcript, 16 February 2009, p 25).
The Father did not allege contravention for the weekend 11 to 13 April 2008.
The public school holidays were between 14 and 25 April 2008 and in accordance with Order 2.6 the father was to spend five nights with the children from Tuesday 15 April 2008. The mother deposed that the children spent 21 to 24 April 2008 with the father.
Pausing here, in the first school term of 2008, there were three weekends when the children did not spend time with the father in accordance with the consent orders and no make up time was made available. The father and the children spent time together during the school holiday period in April 2008.
The first weekend after the April 2008 school holidays was 2 to 4 May 2008. In accordance with Order 2.1 of the consent orders the children were to spend the following weekends with the father after the April school holidays:
· 2 to 4 May 2008
· 16 to 18 May 2008
· 30 May to 1 June 2008
The father contended that on 2 May 2008 the mother failed to make the children available to spend time with the father. This was the seventh count. The mother admitted the allegation but offered a reasonable excuse.
The Father did not allege contravention for the weekend 16 to 18 May 2008.
The father contended that on 30 May 2008 the mother failed to make the children available to spend time with the father. This was the eighth count. The mother admitted the allegation but offered a reasonable excuse.
Pausing here, in the second school term of 2008 up until 1 June 2008, there were two weekends when the children did not spend time with the father and no make up time was made available.
On 6 June 2008 the father moved from Canberra to Sydney. The consent orders provided a regime for the children to spend time with the father in Sydney.
On 18 June 2008 the father filed a contravention application.
On 4 July 2008 the contravention application was listed before Federal Magistrate Terry and adjourned to 28 July 2008. However, on that day other parenting orders were made.
On 28 July 2008 the contravention application was further adjourned and other parenting orders were made, including orders for collection of the children from a children’s contact centre.
On 2 October 2008 the contravention application was before Donald FM. His Honour varied the consent orders with effect, inter alia, to provide when the father had the children on the last week of a school holiday period, that time spent resumed the second week of the school term, and when he had the children in the first week of the school holidays, time spent by the father resumed on the first week of the school term.
Dunkley FM’s reasons expose no consideration of the individual breaches, nor does he consider the overall circumstances in which the breaches occurred, including confusion by both parties in respect of some weekends at the commencement of school terms. His Honour’s reasons for treating the breaches as “more serious” appear to overlook the extent to which the father did have time with the children, albeit not always on the dates to which he was entitled under the Court order. We have earlier acknowledged that orders must usually be obeyed when parents are unable to agree on a change in arrangements, but we have also noted that a flexible approach by parents is likely to be in the best interests of children.
His Honour’s lack of adequate reasons on this topic, which we note were not oral, but reserved written reasons, was no doubt compounded by the global manner in which he dealt with the contraventions (see McClintock & Levier per Finn J at [66]).
Our review of the evidence in this case does not satisfy us that his Honour’s conclusion that the breaches were “more serious” was open to him. In our view, the individual breaches each could well have been found to fall within the characterisation of “less serious”. In saying this we note that the father was seeing the children on a regular basis including block school holiday periods. In our view, this was a case where orders for a post separation parenting program, and/or with compensatory contact could have assisted the parties to understand and comply with their obligations under the orders. Further the misunderstanding or the problem between the parties as to the weekend the father was to resume seeing the children after school holidays had been effectively dealt with by the variation to the consent orders made by Donald FM on 2 October 2008, and there had been compliance with the varied orders.
We are satisfied there is merit in this challenge insofar as it is directed to the “more serious” contravention findings.
Indemnity costs order
Ground 14 asserts that the Federal Magistrate “erred in finding that the Appellant did not challenge the quantification by the Respondent of his costs”.
Consideration of the merits of this ground would involve a detailed examination of various exchanges that occurred during the proceedings below. In essence, the mother contends that such examination would show that the quantum of costs was a live issue; that the Federal Magistrate indicated he would permit her an opportunity to address him on that issue; and then failed to do so.
Associated with this contention is an important question concerning what is meant by the expression “all of the costs” in s 70NFB(2)(g). There were no submissions made to the Federal Magistrate on this issue and his Honour proceeded on an assumption that the father was entitled to a full indemnity in relation to costs incurred in the proceedings.
Whilst we consider there may be merit in the proposition that his Honour erred in proceeding on the basis that the quantification of costs was not challenged, ultimately we find it is unnecessary to consider this ground of appeal. This is because, having found merit in some of the substantive complaints made by the mother, we would set aside the costs order.
Conclusion
We have found error in the Federal Magistrate’s treatment of Counts 1, 2 and 5 and the lack of reasons in respect of more serious breach of the consent orders. We have not been persuaded there is any basis for interference with the findings concerning Counts 3, 6, 7 and 8. Count 4 was dismissed at trial.
These mixed outcomes give rise to a dilemma, due in part to his Honour’s decision to impose a global penalty, rather than treating each count separately. Whilst we recognise the attractions of such an approach, the outcome here highlights why it is generally desirable for a separate penalty to be fixed for each breach, with consideration then being given to questions of cumulation or concurrence: Pearce v The Queen (1998) 194 CLR 610 per McHugh, Hayne and Callinan JJ at [45]; Abduramanoski and Abduramanoska (2005) FLC 93-215 at [60] to [86]; and McClintock & Levier (2009) FLC 93-401 at [66] per Finn J and at [166] to [172] per Coleman J, but see also at [265] per Cronin J.
The depth of the dilemma is magnified when it is appreciated that the period covered by the bond imposed by the Federal Magistrate has now expired and the time periods for the make-up contact have also passed (and had passed by the time the appeal was heard).
Having found appealable error in respect of counts 1, 2 and 5, we have considered the practicality of remitting those counts for rehearing. Ultimately we have concluded, for the reasons we have already discussed, that such a course has minimum utility and would involve a lack proportionality having regard to the time and costs involved.
In so determining we are aware that the mother sought, in the event the appeal was successful, we should “discharge” Order 1 of the orders of the Federal Magistrate (the order imposing the bond). As we have recorded, the term of the bond which required the mother to strictly comply with the terms of the parenting orders and to be of good behaviour has now expired. As the order is effectively spent we see no utility in setting it aside. In saying this we also take into account that even if the remitted counts were established, that the compensatory time order has also expired, and there was nothing before us to suggest there was non-adherence to the consent orders.
We are conscious however that the father was successful in respect of four counts, and the question of costs of the proceedings below requires re-determination. We are of the view, on the evidence before us, we could re-determine the issue of costs, thus saving the parties the time and expense of a rehearing on this limited issue. To afford natural justice to the parties we propose, if they wish to make submissions to us on whether or not we should re-determine the costs issue, that they may do so, and the matter can be relisted before us by arrangement with the Appeal Registrar in the Full Court week scheduled for Sydney commencing 7 December 2010. In the event the parties do not seek a relisting we will re-determine the issue of the costs of the proceedings before the Federal Magistrate.
Costs
At the conclusion of the hearing before us we received submissions in respect of costs of the appeal. The mother sought in the event the appeal was allowed that the father pay her costs of and incidental to the appeal, or in the event we made no orders as to costs, and we found error of law, that she receive a certificate under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). The father sought if the appeal was dismissed we award costs on an indemnity basis, and if the appeal succeeded on an error or law that he receive a certificate.
We are not satisfied there are circumstances justifying a departure from s 117(1) of the Act. We have found error of principle by the Federal Magistrate. We propose therefore to grant certificates to each party for the appeal.
I certify that the preceding one hundred and seventy five (175) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 1 December 2010.
Associate:
Date: 1 December 2010
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