Heazlewood & Harksen
[2022] FedCFamC1A 217
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Heazlewood & Harksen [2022] FedCFamC1A 217
Appeal from: Harksen & Heazlewood [2022] FedCFamC2F 360 Appeal number(s): NAA 82 of 2022 File number(s): PAC 745 of 2015 Judgment of: MCCLELLAND DCJ Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – APPEAL – CONTRAVENTION – Where the appellant father appeals from the dismissal of his contravention application alleging 26 counts against the respondent mother – Grounds based on false premise – Grounds fail to particularise error – Mother had reasonable excuse for failing to comply with orders – Appeal dismissed – Appellant ordered to pay costs of Independent Children’s Lawyer in fixed sum. Legislation: Evidence Act 1995 (Cth) s 78
Family Law Act 1975 (Cth) s 69ZT, 117(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Argyle & Thomas [2017] FCCA 621
Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Childers and Leslie (2008) FLC 93-356; [2008] FamCAFC 5
Cross & Beaumont (2008) 39 Fam LR 389; [2008] FamCAFC 68
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
HJ Heinze Company Australia Ltd v Turner (1998) 4 VR 872
Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540; [2014] VSCA 322
Lenova & Lenova (Costs) [2011] FamCAFC 141
Malloy & Stopford Malloy [2021] FamCAFC 23
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50
Sheerin v Director of Public Prosecutions (Vic) (2021) 288 A Crim R 162; [2021] VSCA 48
State of Victoria v Bacon [1998] 4 VR 269
Number of paragraphs: 71 Date of hearing: 16 September 2022 Place: Sydney Solicitor for the Appellant: Mr Ly, M J Woods & Co Solicitors Counsel for the Respondent: Mr Macarounas Solicitor for the Respondent: Peter Jurd, Lawyer Counsel for the Independent Children's Lawyer: Ms Conte-Mills Solicitor for the Independent Children's Lawyer: Harb Lawyers ORDERS
NAA 82 of 2022
PAC 745 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HEAZLEWOOD
Appellant
AND: MS HARKSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
MCCLELLAND DCJ
DATE OF ORDER:
19 december 2022
THE COURT ORDERS THAT:
1.The Further Proposed Amended Notice of Appeal dated 15 September 2022 is dismissed.
2.The appellant father is to pay the costs of the Independent Children’s Lawyer in the fixed sum of $4,466.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Heazlewood & Harksen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
This matter concerns an appeal from the decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) dismissing the appellant’s Amended Contravention Application filed 8 June 2021. That contravention application which had been filed by the appellant father, Mr Heazlewood, alleged 26 contraventions by the respondent mother, Ms Harksen, during the period of 12 December 2020 until 5 June 2021.
Essentially, the primary judge found that while the respondent mother had failed to comply with relevant parenting orders concerning the parties’ child X, born in 2013, she had a reasonable excuse for doing so in circumstances where the primary judge accepted that the mother had a legitimate concern regarding the level of distress experienced by the child, then aged nine, at the prospect of spending time with the father. Relevantly, the primary judge found that the mother’s assessment of the child’s distress was objectively verified by evidence from a Family Consultant and also by a police officer who was in attendance at the scene of a proposed changeover.
For reasons which I set out below, I have found this appeal to be without merit and while an order for costs has not been sought by the respondent mother it is, in the circumstances of this case, appropriate to make an order for the appellant father to pay the costs incurred by the Independent Children’s Lawyer (the “ICL”).
Background
The ICL helpfully provided a short chronology of what I regard to be events of significance in the determination of this appeal, focusing upon the relevant period during which the contraventions were alleged. The following summary of background facts is substantially based on that chronology.
On 22 June 2018, final parenting orders were made by Judge Dunkley. Those orders provided for the child to live with the mother, who was to have sole parental responsibility. Orders were made for the child to spend time with the father on an increasing basis, with the goal of the child ultimately spending alternative weekends with the father.
On 1 August 2019, Judge Harman considered a contravention application filed by the father. He found that the mother did not comply with the parenting orders made by Judge Dunkley on 13 occasions. The mother was ordered to enter a bond for two years to be of good behaviour and to comply with the orders of 22 June 2018.
On 2 December 2019, Judge Harman varied the previous spend time orders such that the child would spend time with the father each Saturday from 10.00 am until 5.00 pm.
On 18 November 2020, a further contravention application was heard by Judge Jarrett (as he then was).
On 27 November 2020, Judge Jarrett made an order for the child to spend time with the father on that day until 5.00 pm and to be returned to the mother at the Suburb B police station. In accordance with the orders, the father collected the child from the Court at approximately 1.00 pm. Relevantly, that changeover was supervised by Mr C, a senior Family Consultant engaged by the Court. At 2.30 pm, the mother returned to the registry with the child after having taken the child from the father in the period subsequent to the father leaving the Court with the child. The proceedings were subsequently relisted later that afternoon before Judge Jarrett who, on the occasion of that relisting, made orders for the father to again spend time with the child on the following day. The matter was adjourned for further directions until 4 December 2021.
On 28 November 2020, the father arrived at the designated police station to collect the child. The child became distressed at the prospect of spending time with the father and remained in the car. That level of distress was observed by attending police officers who advised the mother to leave with the child.
In accordance with previous directions, the matter was listed before Judge Jarrett on 4 December 2020. Judgment was reserved until 11 December 2020, in circumstances where an order was made requiring the child to be brought to Parramatta Child Dispute Services on 11 December 2020 to remain in childcare until further order of the Court.
On 11 December 2020, Judge Jarrett found that the mother had contravened the original parenting orders of 22 June 2019 on six occasions. He sentenced the mother to imprisonment, with that sentence being suspended for two years conditional upon the mother’s compliance with the orders made on 2 December 2019. The orders made on 22 June 2018 were suspended until further order. An order was made for the child to spend time with father that day, with the child to be collected from Child Dispute Services within the Court and changeover to subsequently occur at Suburb B police station. An order was also made restraining the mother from coming within 200 metres of the father and the child whilst the child was with the father.
When the father presented at Child Dispute Services to collect the child, the child became distressed and refused to leave with the father. Mr C, a senior Family Consultant of the Court, was present at this time and stated that, after some time, the father was able to pick up and carry the still distressed child out of the registry (at [27]–[28]).
On 12 December 2020, the parties arrived separately at the designated police station for changeover. Again, the child became distressed at the prospect of spending time with the father and remained in the car. Again, the level of distress experienced by the child was observed by two attending police officers, who advised the mother to leave with the child.
On 8 June 2021, the father filed an Amended Application-Contravention alleging 26 contraventions against the mother. That application was heard over two days before the primary judge on 25 February 2022 and subsequently on 3 March 2022.
On 25 March 2022, the primary judge made orders dismissing the father’s application, as noted, on the basis that he found the mother had a reasonable excuse in not facilitating the child spending time with the father during the relevant period of the alleged contraventions.
On 22 April 2022, the father filed a Notice of Appeal. That Notice of Appeal has subsequently been amended such that the father relies upon his Further Proposed Amended Notice of Appeal filed on 15 September 2022 and his amended Summary of Argument also filed on that day.
Grounds of appeal
At the commencement of the appeal hearing, the Court considered the appellant’s Application in an Appeal filed 7 September 2022 seeking an extension of time to file and subsequently rely upon his Further Proposed Amended Notice of Appeal dated 15 September 2022. That leave was granted in circumstances where the proposed document was substantially in accordance with the original Notice of Appeal filed 22 April 2022, save that it had resolved unsatisfactory ambiguity in the manner in which the grounds had been expressed in the original grounds of appeal.
However, in circumstances where the Further Proposed Amended Notice of Appeal retained grounds that were unsatisfactorily ambiguous, I requested the assistance of the solicitor advocate for the appellant to clarify the substance and intention of those grounds by reference to the appellant’s amended Summary of Argument filed on 15 September 2022.
As the appellant did not press Ground 7, I will consider each remaining ground in the context of the cross-referenced paragraphs of the appellant’s amended Summary of Argument.
Ground 1 – His Honour failed to give reason or sufficient reasons for the finding that it is in the best interest of the child to suspend contact with the father from 12 December 2020 to 5 June 2021
In respect to this ground of appeal, the appellant cross-referenced paragraphs 14 to 48 of the appellant’s amended Summary of Argument.
Even when referenced against those relevant paragraphs of the Summary of Argument, this ground must be dismissed because it is based on a false premise. At no stage in the primary proceedings did the primary judge make a finding that it was in the best interests of the child to suspend contact with the father from 12 December 2020 until 5 June 2021.
As has earlier been noted, although the primary judge found that the mother had failed to comply with the relevant parenting orders that were applicable during that period, his Honour also found that she had a reasonable excuse for failing to do so.
In that regard, the primary judge considered not only the evidence of the mother regarding the level of the distress suffered by the child but also the record of the observations of the respective attending police officers on the two occasions that changeover had been attempted outside the designated police station.
Additionally and significantly, the primary judge accepted the evidence of Mr C, a senior Family Consultant attached to the Parramatta registry of the Court. That evidence included not only Mr C’s oral testimony, but also the contents of a memorandum dated 27 November 2020 (at [15]–[19]) and a further memorandum of Mr C dated 11 December 2020 (at [26]–[29]). Relevantly, at [29] of the reasons, the primary judge recorded that in the further memorandum dated 11 December 2020, Mr C stated:
It is noted that there remains an unresolved application for final Orders in this matter. I would be concerned about further distress or psychological harm for the child should there be a further requirement for him to attend the Registry for the purpose of transitions between his parent’s care or for assessment.
The oral evidence of Mr C was summarised by the primary judge from [48]–[50] of the reasons.
At [50] of the reasons, the primary judge specifically stated that he accepted both the written and oral evidence of Mr C. It was reasonably open to his Honour to do so.
In summary, in respect of this ground, it must be dismissed on the basis that it is based on a false premise. The asserted finding was not made by the primary judge as contended in Ground 1. The central issue, as determined by the primary judge, was that his Honour found the mother had a reasonable excuse for not facilitating the child spending time with the father, having regard to her concerns for the safety and welfare of the child in the context of the child’s distress at the prospect of spending time with his father. The primary judge set out the relevant evidence upon which he relied in making that determination and provided adequate reasons in explaining why, on the basis of that evidence, his Honour concluded that the mother had such a reasonable excuse.
Ground 2 – His Honour made findings that are not supported by the evidence
A number of authorities emphasise the importance of an appellant properly particularising the asserted error which they contended was made by the primary judge.[1] Specifically, grounds of appeal should be expressed as a “specific and concise statement of the points sought to be argued by the applicant”: Nimesh Watapaldeniya v Transport Accident Commission [2022] VSCA 50 at [2]. An appellate court cannot be expected to rummage through the broadly expressed arguments that are set out in an appellant’s amended Summary of Argument with a view to distilling a specific and concise ground or grounds of appeal: Newett and Newett (No 2) (2021) FLC 94-051 at [34] referring to Bahonko v Sterjov (2008) 166 FCR 415 at [3].
[1] See for example State of Victoria v Bacon [1998] 4 VR 269 (Phillips JA), HJ Heinze Company Australia Ltd v Turner (1998) 4 VR 872 and Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540.
With a view to seeking to add clarity to this ground of appeal, the appellant refers to paragraph 21 of his amended Summary of Argument filed 15 September 2022. That paragraph extracts a passage from the often cited decision of Warwick J in Childers and Leslie (2008) FLC 93-356 (“Childers and Leslie”). Regrettably, it adds no clarity whatsoever to this ground of appeal.
The respondent, justifiably, indicated embarrassment in responding to this unacceptably general ground of appeal which fails to particularise the alleged error on the part of the primary judge.
In the absence of any error on the part of the primary judge being particularised, this ground must be dismissed.
Ground 3 – His Honour misdirected himself in relation to the law and specifically the test of reasonable excuse
In respect of this ground of appeal, the appellant again relies upon paragraphs 14 through 48 of his amended Summary of Argument. They are the same paragraphs that he relied upon in respect to Ground 1 and extract references to several authorities including Childers and Leslie and Argyle & Thomas [2017] FCCA 621.
It is the case that the primary judge did not refer to any specific authority as setting out the guiding principles which he applied. However, provided a trial judge applies proper principle, it is unnecessary for reference to be made to each relevant authority from which those principles were derived. As noted by the Victorian Supreme Court of Appeal in Sheerin v Director of Public Prosecutions (Vic) (2021) 288 A Crim R 162 at [65], “the failure to refer to some relevant decision may explain the error but the error must first be established by conventional means.”
In that context, it is of note that the primary judge was not taken to those relevant authorities during the course of the proceedings. Nonetheless, the transcript of proceedings indicates that the primary judge was focused upon the objective evidence regarding the level of the child’s distress, rather than simply the mother’s subjective assessment of it.[2] His Honour’s focus in doing so was entirely consistent with the often cited extract from the decision of Warnick J in Childers and Leslie at [28]–[35].
[2] Transcript 3 March 2022, p.55
In this matter, the independent evidence of the level of the child’s distress as described in the notes of the attending police officers and as further described in the evidence of Mr C, together with the father’s own acknowledgement of the child’s distress, to which I have earlier referred, plainly provided the primary judge with relevant “objective” evidence upon which he could properly find that the “defence” of reasonable excuse had been made out as an objective fact.
It was not necessary, as contended at paragraph 19 of the appellant’s amended Summary of Argument, for those independent observations to be corroborated by “medical evidence.” The observations of the mother, the police officers and the family consultant regarding the level of the child’s distress were clearly admissible, pursuant to s 78 of the Evidence Act 1995 (Cth) and the primary judge was entitled to rely upon that evidence and make findings based upon that evidence. In any event, as these are parenting proceedings, in the absence of an application to do otherwise, the primary judge was not bound by relevant rules of evidence including the lay opinion rule per s 69ZT of the Family Law Act 1975 (Cth) (“the Act”).
Accordingly, there is no merit in this ground of appeal.
Ground 4 – His Honour failed to place any weight on the mother’s declaration that she would never comply with any orders of this Court
In support of this ground of appeal, the appellant relied upon paragraphs 49–64 of his amended Summary of Argument including, specifically, paragraphs 50 and 51. Additionally, the solicitor advocate for the appellant sought to expand upon this ground during the course of oral submissions by reference to various passages of the transcript that were not referred to in the written amended Summary of Argument.
Those passages were, in substance, references to statements repeated by the mother that she did not facilitate the child’s spending time with the father during the relevant period as a result of her concerns for the safety and welfare of the child, in circumstances where the child had demonstrated profound distress at the prospect of spending time with his father.
None of those references relied upon by the solicitor advocate for the appellant established that the mother made any such declaration that she would never comply with any orders of the Court including, for instance, if the level of the child’s distress could be ameliorated by the parties adopting a therapeutic rather than litigious approach to addressing the causes of the distress.
Being based on a false premise because no such declaration was made by the mother, this ground is therefore without merit and must be dismissed.
Ground 5 – His Honour failed to give weight or sufficient weight to the quality of the mother’s evidence
This ground of appeal suffers the same defects as identified in respect to Ground 2. The respondent understandably indicated embarrassment at attempting to respond to a ground expressed with such generality and, indeed, ambiguity. Reference was made, in particular, to the incomprehensibility of the reference to “the quality of the mother’s evidence.” That ambiguity was not clarified by the solicitor advocate’s reference to paragraphs 71–74 of the appellant’s amended Summary of Argument.
Additionally, the difficulty of challenging a trial judge’s attribution of weight on appeal is well known. As it was stated in Gronow & Gronow (1979) 144 CLR 513 at 520 per Stephen J, “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”.
As earlier indicated, having determined that the mother had failed to comply with the relevant parenting orders, the central issue for the primary judge to determine was whether the mother had a reasonable excuse in doing so. For reasons which I have set out in respect to Ground 1, I am satisfied that the primary judge gave appropriate weight to the mother’s evidence, which was corroborated by the independent observations of attending police officers and, significantly, a family consultant attached to the Court.
No error has been established. This ground must also be dismissed.
Ground 6 – His Honour imputed evidence in favour of the mother which was not supported by evidence
This ground also suffers the same deficiencies as Grounds 2 and 5. Despite his persistence in the course of the appeal, the solicitor advocate for the appellant was unable to assist the Court or the other parties in understanding the concept of “imputed evidence”. It was certainly not clarified by the solicitor advocate’s cross reference to paragraphs 20 to 48 of the appellant’s amended Summary of Argument.
This ground of appeal is incomprehensible and must therefore be dismissed.
Ground 8 – His Honour place no weight or sufficient weight and failed to give reasons as to how His Honour dealt with the conflicting excuses provided by the mother for failing to comply with orders of the court
To support this ground of appeal, the solicitor advocate for the appellant cross-referenced paragraphs 27 through to 37 of the appellant’s amended Summary of Argument.
At paragraph 35 and 36 of the appellant’s amended Summary of Argument it is noted, by reference to the relevant evidence, that the primary judge rejected “the mother’s explanation that she thought the orders had been either set aside or stayed” in proceedings before Judge Jarrett. It appears no criticism is made of the primary judge for the reasons he provided in rejecting the mother’s contention that her lack of understanding of the relevant orders excuse her non-compliance with them. Detailed reasons were provided by his Honour for rejecting the mother’s submissions in that respect (at [54]–[60]).
While not referred to as being of relevance to this ground of appeal, paragraph 37 of the appellant’s amended Summary of Argument appears more to the point. In that paragraph, it is contended that the primary judge should have considered the mother’s evidence regarding her lack of understanding of the orders, which was rejected by the primary judge, “when considering whether or not [the mother’s] evidence is credible”.
The difficulty for the appellant, however, is that at no stage during the trial was it contended before the primary judge that the credibility of the mother’s evidence relating to her concerns for the safety and welfare of the child was diminished by the fact that she contended, as an alternative basis for failing to comply with the orders, her misunderstanding as to the extent to which those orders had been suspended and/or varied in the proceedings before Judge Jarrett. In that respect, it is noted that the appellant is bound by the manner in which he conducted the proceedings at first instance (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
The mother gave credible evidence regarding her concerns for the safety and welfare of the child in light of the extent of the child’s distress at the prospect of spending time with the father. The primary judge explained why he accepted that evidence at [61] to [69] of the judgment and, for reasons which I have explained, it was reasonably open for him to do so. No error has been established in terms of the weight which his Honour attached to the mother’s evidence or the other corroborating evidence to which I have earlier referred.
Accordingly, this ground is without merit and must be dismissed.
Ground 9 – His Honour failed to place any or appropriate weight on the mother’s prior suspended sentence and bond from 11 December 2020 imposed by this Court for previous contraventions of orders of this Court
In support of this ground, the solicitor advocate for the appellant relied on paragraphs 49 through to 51 of the appellant’s amended Summary of Argument. Paragraph 49 refers to the previous proceedings in which the mother was found to have failed to comply with the relevant orders and received a sanction by the Court as a consequence. Paragraphs 50 and 51 of the appellant’s amended Summary of Argument referred to two authorities in respect to the imposition of a penalty consequent upon the finding of contravention.
In addressing this ground of appeal, it is firstly noted that the trial judge had regard to the previous orders of the Court, including the sentences imposed for previous contraventions (at [24]).
Those contraventions did not relate to the period of time during which the contraventions considered by the primary judge were said to have occurred. The task before the primary judge was to determine whether, in respect to that relevant period, the mother had a reasonable excuse for failing to comply with the orders. His Honour appropriately focused upon the evidence provided by the mother in respect to attempted changeovers that had occurred during that period which, as I have noted, was corroborated by attending police officers and the family consultant. For reasons which I have earlier explained, the weight that the primary judge attached to that evidence was a matter for the primary judge in the context of the totality of evidence presented before him. No error has been established in respect to the manner in which the primary judge considered that evidence, or the findings he made in the context of that evidence.
Accordingly, this ground is also without merit and must be dismissed.
Ground 10 – His Honour should have sought the opinion and views of the ICL at the conclusion of the case
This ground is again without merit.
It was a matter for the primary judge to determine whether the mother had failed to comply with the relevant parenting orders and, having so found, whether she had a reasonable excuse for doing so.
Each of the parties who appeared in the proceedings were entitled, if they so wished, to make submissions with a view to assisting the primary judge to make a determination in respect of those matters.
The transcript indicates that the ICL was provided with the opportunity to make submissions if he so wished, but indicated he was inclined to the same view as the primary judge that, in representing the best interests of the child, the appropriate time for the ICL to make submissions was when it came to confirming, varying, suspending or making further parenting orders.[3]
[3] Transcript 3 March 2022, p.70 line 34 to p.71 line 16.
The position of the ICL in that respect was confirmed during the course of the appeal.
There is no merit in this ground of appeal which must also be dismissed.
Costs
The respondent, who is legally aided, did not seek costs in this matter.
In circumstances where the appellant has been wholly unsuccessful, the ICL sought an order for the appellant to pay the totality of costs incurred by the ICL. That application was supported by the respondent.
In opposing the making of such an order, the solicitor advocate for the appellant referred to the appellant’s impecuniosity.
While the financial capacity of a party to satisfy an order for costs is a relevant consideration pursuant to s 117(2A) of the Act, it is not the sole consideration. It is clear that impecuniosity is not, in itself, a bar to a potential order for costs.[4]
[4] Malloy & Stopford Malloy [2021] FamCAFC 23 at [14], citing Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]; see also Cross & Beaumont (2008) 39 Fam LR 389 at [60].
In circumstances where the appellant has been wholly unsuccessful and, in circumstances where, with respect, many of the grounds of appeal were poorly framed, resulting in additional unnecessary expense, it is appropriate for the appellant to meet the entirety of the costs incurred by the ICL in the sum of $4,466.
In making such an order, I note that the costs of the ICL have been assessed at Legal Aid NSW rates, which are considerably below those specified in the cost schedule attached to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Disposition
For the reasons to which I have referred, the appeal must be dismissed and the appellant is ordered to pay the costs of the ICL in the sum of $4,466.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 19 December 2022
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