Heazlewood & Harksen

Case [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 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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

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Heazlewood & Harksen [2022] FedCFamC1A 217
Case
[2022] FedCFamC1A 217
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Heazlewood & Harksen involved an appeal by the father against a decision made by Judge Jarrett. The father contested the primary judge's determination that the mother had a reasonable excuse for not facilitating the child's spending time with him, given the child's distress at the prospect of such time. The father sought to appeal on multiple grounds, including the alleged misapplication of the reasonable excuse test and the failure to seek the Independent Children's Lawyer's opinion. The court found that the father's grounds for appeal were poorly framed, lacking specific and concise statements of error.

The court meticulously reviewed each ground of appeal, dismissing them on the basis that they either failed to particularise specific errors made by the primary judge or were based on false premises. For instance, the court found that the primary judge did not misapply the reasonable excuse test and that the mother's evidence, supported by independent observations, was appropriately weighed. The court also dismissed the claim that the primary judge failed to seek the opinion of the Independent Children’s Lawyer, noting that it was within the primary judge's discretion to determine when such input was necessary.

Ultimately, the court concluded that the appeal was without merit. Given the father's unsuccessful appeal and the poor framing of many grounds, the court ordered the father to pay the Independent Children’s Lawyer's costs in the sum of $4,466. The costs were assessed at Legal Aid NSW rates, reflecting the lower rates compared to the standard cost schedule. The appeal was dismissed, and the father was ordered to pay the costs incurred by the Independent Children’s Lawyer.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.”

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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