Herbert & Herbert
[2021] FamCAFC 108
•5 July 2021
FAMILY COURT OF AUSTRALIA
Herbert & Herbert [2021] FamCAFC 108
Appeal from: Herbert & Herbert [2020] FamCA 213;
Herbert & Herbert(No. 2) [2020] FamCA 217;
Herbert & Herbert (No. 3) [2020] FamCA 603
Appeal number(s): NOA 18 of 2020;
NOA 33 of 2020;
NOA 51 of 2020File number(s): BRC 4902 of 2017 Judgment of: AINSLIE-WALLACE, WATTS & TREE JJ Date of judgment: 5 July 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – PROPERTY – Appeal against final parenting and property settlement orders – Weight challenges – Procedural fairness – Findings open on the evidence – Conclusion drawn by the primary judge not plainly wrong – Appeal allowed in part against parenting orders – One order set aside – No merit in other grounds of appeal – Appeal otherwise dismissed.
FAMILY LAW – APPEAL – CONTRAVENTION – CONTEMPT – VEXATIOUS LITIGANT ORDER – Appeal against summary dismissal of contravention and contempt applications, vexatious proceedings order and costs ordered against the appellant – Findings drawn from the evidence – Correct conclusions drawn by the primary judge – No error of law – Appeal dismissed – Costs of the appeal ordered in a fixed sum.
Legislation: Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 45A(2), 69ZV, 69ZX, 75(2), 79(4), 102NA, 102QB, 117(2A)
Family Law Rules 2004 (Cth) r 19.18(3)(a), Sch 3
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Herbert & Herbert [2020] FamCA 213
Herbert & Hebert (No. 3) [2020] FamCA 603
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
M and M (1990) FLC 92-106; [1989] FamCA 63
McClintock & Levier (2009) FLC 93-401; [2009] FamCAFC 62
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Reid v Howard (1995) 184 CLR 1; [1995] HCA 40
Division: Appeal Division Number of paragraphs: 205 Date of hearing: 4 March 2021 Place: Heard in Brisbane, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr George Solicitor for the Respondent: Rosen Lawyers Counsel for the Independent Children’s Lawyer: Mr Slade Jones Solicitor for the Independent Children’s Lawyer: Lyrene Wiid Lawyer & Migration Agent ORDERS
NOA 18 of 2020; NOA 33 of 2020; NOA 51 of 2020
BRC 4902 of 2017APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS HERBERT
Appellant
AND: MR HERBERT
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
AINSLIE-WALLACE, WATTS & TREE JJ
DATE OF ORDER:
5 JULY 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 1 March 2021 by the respondent is allowed.
2.The Application in an Appeal filed on 1 March 2021 by the appellant is allowed in part.
3.Leave is granted for the appellant to rely on the Amended Notices of Appeal, Summary of Argument, List of Authorities and Exhibit Bundles for Appeals NOA 33 of 2020 and NOA 51 of 2020.
4.Appeals NOA 18 of 2020 and NOA 51 of 2020 are dismissed.
5.Appeal NOA 33 of 2020 is allowed in part and Order 17 of the orders made by a judge of the Family Court of Australia on 25 March 2020 is set aside.
6.Appeal NOA 33 of 2020 is otherwise dismissed.
7.Leave is granted for the respondent to rely on his Schedule of Costs filed 26 February 2021.
8.The appellant pay the respondent’s costs of the appeals in the sum of $15,000 within twenty-eight (28) days of the date of this order
.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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herbert & Herbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE, WATTS & TREE JJ:
Two appeals filed by Ms Herbert (“the mother”) challenge orders made by a judge of the Family Court in proceedings between herself and Mr Herbert (“the father”). The first appeal (NOA 33 of 2020) challenges parenting and property settlement orders made on 25 March 2020 (“the first appeal”) and the second appeal (NOA 51 of 2020) challenges orders made on 23 July 2020 which summarily dismissed the mother’s contravention and contempt applications; made a vexatious proceedings order in relation to the mother pursuant to s 102QB of the Family Law Act 1975 (Cth) (“the Act”) and an order that the mother pay the father’s costs of those applications in a fixed sum (“the second appeal”).
A third appeal against interim orders (NOA 18 of 2020) was abandoned.
Before turning to the grounds of appeal, it is helpful to provide some factual background to the issues agitated by the mother on the appeals.
BACKGROUND
The mother and the father commenced living together in June 1992, married in 1999, separated in December 2016 and divorced in June 2018. There are three children of the marriage; U born in 2000, now an adult, who has, since separation, lived with the mother, X born in 2003 and Y born in 2009. The parenting proceedings concerned the two younger children (“the children”).
The parties have been engaged in litigation about the children since May 2017. At separation, the children remained living with the mother. However, in September 2018, following interim proceedings, the primary judge ordered that the children move to live with the father. As a result of further interim proceedings, the primary judge ordered that the children spend no time with their mother save with the father’s agreement.
Proceedings intended to finalise the parenting and property settlement issues between the parties commenced in July 2019 at the conclusion of which the primary judge reserved his decision which was delivered and orders made on 25 March 2020.
While judgment was reserved and on 10 January 2020, the older of the children stole away from his father’s house in the middle of the night, having been collected, as planned, by his older sister who lived with the mother. The father knew nothing of this, and on finding the child missing, contacted the police. Despite police involvement the child refused to return to live with the father, and, instead remained in the care of his maternal grandmother.
The proceedings returned to the primary judge on 30 January 2020. Given the age of the older child (then 16 years), the primary judge rather than order his immediate return, sought the assistance of a Family Consultant who interviewed the child and explored his views. A report of that interview was prepared. The Family Consultant concluded that the child was sufficiently mature to be able to express a view about where he wanted to live, and, that was with the mother. Nor did he wish to return to see his father or live with him. The child, while wishing to maintain a relationship with his younger brother who was then living with the father, was unsure how that would be achieved.
His Honour said in his reasons for judgment relating to interim parenting:[1]
13.[The Family Consultant] reported that [the older child] told him he would prefer to live with his mother now and in the longer term, saying that he did not want to live with his father. He reported [the older child] telling him a story of a time that [the older child] estimated was in November 2019 when he wanted the day off school as he was “sick and behind with an assignment”. Apparently, [the older child] told [the Family Consultant] that his father was “angry and mad” as he did not want him to have the day off and had dragged him out of bed that day, then got his partner, [Ms L], to talk to [the older child]. [The older child] is reported to have said that he did not want to talk to [Ms L] and that he asked her nicely to go away before telling her to “fuck off” when she would not go away. [The older child] is then reported to have said that his dad got angry and grabbed him with his hands “on my chest near my neck” and pushed him against the wall “multiple times”. [The older child] is reported to have said that his father had “pushed him around” a couple of times before that day and since then as well.
[1]Herbert & Herbert [2020] FamCA 213 at [13].
The primary judge said that the evidence of the child’s views had, from the outset of the proceedings as far back as 2018, been firmly that he did not wish to live with the father and his Honour on 5 February 2020 ordered that the older child may choose with which parent to live from time to time and that the parent with whom the child chooses to live is to have sole parental responsibility for major long term issues for that child. The interim orders also provided for time to be spent between the older child and the father and the younger child every second Sunday for four hours.
Nevertheless, his Honour said:
21.I made the Orders that the boys move to live with the father in 2018, influenced by a number of factors. Principally, the evidence satisfied me that [the older child] had missed about six weeks of school when he was still only fourteen years of age whilst he was attending an expensive … private … school. I am satisfied that the responsibility for that lay, mostly at the feet of the mother with whom he was living, despite her valiant attempts to persuade me that the boy was staying away from school out of fear of his father. I was also quite satisfied that the fact that the boys were not spending time with their father as previously ordered was, again, mostly the responsibility of the mother who, I consider, does not value or encourage the continuation of relationships between the father and their children. Whilst the mother, again valiantly, attributes this to concerns about the father’s behaviour towards her and the children, I am satisfied that much of the mother’s feelings in this case are attributable to her inability to emotionally accept the end of her marriage to the father.
The mother initially appealed those orders and maintained the challenge until partway through the appeal hearing, at which point, as indicated, it was sensibly abandoned.
As indicated, final parenting and property settlement orders were made by the primary judge on 25 March 2020. The parenting orders provided for the older child to live with whomever he chose, and that parent would have sole parental responsibility for major long term issues in his life. The younger child was to live with the father and the father to have sole parental responsibility for major long term issues in the child’s life. Orders were made that the younger child spend supervised time with the mother for two or three hours on one of the days of each second weekend. The mother was enjoined from attending the younger child’s school or going within 500 metres of that school save for pre-arranged appointments with the school principal and the younger child’s class teacher (Order 17).
As to the property settlement, the primary judge ordered that the mother receive 60 per cent of the net total of the property pool, with the father to receive the corresponding 40 per cent. As part of the suite of property settlement orders made by the primary judge, his Honour made orders that the mother transfer to the father her interest in E Pty Ltd as trustee for the Herbert Family Trust (“E Pty Ltd”), that the mother retain her interest in the member benefit account with the Herbert Group Superannuation Fund, and for the trustee of the Fund to divide the superannuation using $273,226 as a base amount, from the father’s interest in the Fund, to the mother.
These orders are the subject of the first appeal.
The evidence in the substantive proceedings closed on 2 August 2019 and the primary judge reserved his decision. While judgment was reserved, the mother filed a number of contravention and contempt applications in relation to the father’s alleged breaches of orders; the first filed in October 2019 and the last in June 2020.
The primary judge adjourned all of the applications for hearing. On 3 July 2020, in preparation for the mention of the adjourned applications and, after having read the applications and supporting affidavits filed by the parties, the primary judge invited the mother’s solicitor to make submissions as to why his Honour should not summarily dismiss the applications pursuant to s 45A(2) of the Act. The primary judge adjourned the matter to 10 July 2020 to await those submissions.
On 10 July 2020, the primary judge heard all outstanding contravention and contempt applications filed by the mother and an application filed by the father on 23 June 2020 seeking to have all the mother’s applications determined to be vexatious proceedings.
On 23 July 2020, the primary judge summarily dismissed the mother’s contravention and contempt applications on the basis that they had no reasonable prospects of success and, further, on the application of the father, made a vexatious proceedings order prohibiting the mother from instituting contravention and/or contempt proceedings against the father without the leave of the court, pursuant to s 102QB(2) of the Act. The mother was also ordered to pay the costs of the father in the fixed sum of $3,936.23.
These orders are the subject of the second appeal.
APPLICATIONS IN THE APPEAL
The mother brought a number of Applications in an Appeal seeking orders relating to both appeals.
The mother sought the following orders:
·leave to file separate Amended Notices of Appeal, Amended Summaries of Argument and an Amended List of Authorities for the first and second appeals;
·leave to rely on an exhibit list for Appeal NOA 33 of 2020; and
·leave to rely on an Amended Schedule of Costs.
On 1 March 2021 the father too filed an Application in an Appeal to rely on a Schedule of Costs notwithstanding that it was filed out of time.
The amended documents
The father and the Independent Children’s Lawyer (“ICL”) did not oppose the mother’s reliance on the Amended Notices of Appeal, Summaries of Argument and List of Authorities. Leave was given to rely on those documents.
It appears that the amended documents on which the mother sought to rely had been prepared by a lawyer engaged by her for that purpose. We make no criticism of the mother for seeking assistance in drafting what are complex documents, however, it became clear that there were grounds of challenge raised in the amended grounds that the mother did not understand and on which she could not make submissions. For example in the challenges to his Honour’s property settlement orders, Ground 29 contends that the primary judge failed to give adequate reasons for failing to adopt a “‘two pools approach’ as sought by the [mother]”. The mother did not understand the point being raised and was left unable to make a submission on it. Ultimately she withdrew that ground.
Equally too, the Summaries of Argument had been re-drawn by that lawyer. Those documents are inadequate to the task of supporting the grounds of appeal. For example, at paragraph 16 in the Amended Summary of Argument filed in support of Appeal NOA 33 of 2020, it was argued:
16.With regard to grounds of appeal as they relate to procedural fairness, the [mother] relies upon Cassidy & Cassidy [2009] FamCAFC 125 as and the authorities contained therein: Allesch v Maunz (2000) 203 CLR 172; Stead v State Government Insurance Commission [1986] 161 CLR 141; Kioa v West [1985] HCA 81; 159 CLR 550.
(As per the original)
It was necessary therefore to spend considerable time in the appeal hearing in discussion with the mother trying to understand the thrust of her appeals and the arguments made in support of them given the wholly unsatisfactory submissions made on her behalf. Regrettably, the mother’s arguments did not necessarily align with the grounds and it was necessary for the Court to tease out from her, at times in circumstances of considerable difficulty, just what point she wished to argue in relation to the grounds.
The exhibits
The mother sought to rely on three bundles of trial exhibits in the first appeal which concerns parenting and property settlement.
The documents within the bundles had been exhibits before the primary judge but the mother preferred to collate them into the three bundles as we have described, rather than by reference to the exhibit list before the primary judge. The exhibits referred to by the mother included:
·affidavits filed by the mother in July 2019 and November 2019;
·the ICL’s tender bundle of material produced under subpoena;
·current and historical company extracts for a company from ASIC;
·cost notices;
·an expert report dated November 2018; and
·the mother’s ATO statement for the period of January 2019 to February 2019.
Neither the father nor the ICL opposed the mother’s reliance on and reference to those documents and we gave her leave to rely on them and refer to them in the course of arguing the grounds of appeal.
THE PARENTING APPEAL (PART OF THE FIRST APPEAL)
This appeal challenges the primary judge’s parenting orders made on 25 March 2020.
The mother contends some 23 challenges to the parenting orders.
Some of the grounds can readily and conveniently be considered together.
Denial of procedural fairness (Grounds 1, 2 and 3)
The mother contended that the primary judge denied her procedural fairness by “failing to hear outstanding contravention and contempt applications prior to the delivery of [j]udgment” (Grounds 1 and 2) and that a further denial of procedural fairness occurred in February 2020 when the primary judge declined to direct the younger child to attend on a Family Consultant to obtain his views (Ground 3).
Dealing with Ground 3 first, it is to be recalled that at this time the older child, who, with his younger brother had been living with the father, had run away. The primary judge in considering what interim orders to be made for the older child, ordered his views be ascertained by a Family Consultant. At that time the only issue concerned the older child and where he would live. The primary judge declined to order the younger child’s views be ascertained.
The thrust of the complaint then is, the mother contends that she was denied procedural fairness because the primary judge did not cause a child whose immediate welfare was not in issue to be interviewed. No failure of procedural fairness occurred and no error is established.
Grounds 1 and 2
The Summary of Argument in relation to the first two grounds which contend denial of procedural fairness in failing to hear and consider the evidence in “outstanding contravention and contempt applications prior to delivery of [j]udgment” says nothing about the grounds. We were left to try and understand the point being made by the mother in relation to these grounds which we understand to be that had the primary judge considered the applications (which were filed after the evidence in the hearing had concluded and the primary judge had reserved his decision) he would have accepted the mother’s contention that the father was abusive and violent and would not have made the orders he did.
Prior to the commencement of the parenting hearing, the mother had filed two applications for contravention which were extant at the time the trial commenced. The primary judge heard and determined those applications prior to reserving judgment in the substantive parenting hearing.
While judgment was reserved, the mother filed a number of contravention and contempt applications. The mother made no application to reopen the parenting case and there was no obligation on the primary judge to do so on his own motion based on anything the mother had filed in support of new contravention and contempt applications. We also note that after delivery of the final parenting reasons and orders on 25 March 2020, the primary judge went on to hear the contravention and contempt applications on 10 July 2020. Ultimately all of these applications were dismissed by the primary judge on the basis that they had no reasonable prospects of success. Orders dismissing those applications are the subject of the second appeal to which we will eventually come.
We are unpersuaded that any procedural unfairness attended the course adopted by the primary judge.
Grounds 1, 2 and 3 have no merit.
Injunctions (Ground 3.1)
The primary judge made a number of injunctions in relation to the mother, for example restraining her from attending the children’s school. One of those orders enjoined her from being within 500 metres of the school grounds. The mother challenged this order on the basis that she lived within 500 metres of the school and had done so for years.
During the appeal it was agreed that this order was impracticable and should be set aside. Ground 3.1 will thus succeed and we will set aside Order 17 made 25 March 2020.
Fact finding (Ground 4)
This ground contains a number of sub-grounds and asserts that the primary judge erred in making findings of fact. The complaints generally concern his Honour’s findings about the circumstances leading to the orders of February and March 2020, and particularly in relation to the younger child remaining with the father.
Establishing error in fact finding on appeal faces a significant hurdle. In Edwards v Noble (1971) 125 CLR 296 at 304, Barwick CJ said:
… the appellate court ought not to reverse the finding of fact unless it is convinced that it is wrong. If that finding is a view reasonably open on the evidence, it is not enough in my opinion to warrant its reversal that the appellate court would not have been prepared on that evidence to make the same finding. Merely differing views do not establish that either view is wrong…
The mother contends that his Honour erred in finding that the mother’s evidence of experiencing family violence, including the father’s attempts to poison her “was not accurate”. So too, she argues, that the primary judge erred in rejecting her evidence that the father had sexually abused their daughter when she was a baby and that he had installed a “listening device” in the mother’s car.
The primary judge accepted that the father had perpetrated family violence against the mother in relation to an incident which occurred in July 2017 and which resulted in Protection Orders being made in the mother’s favour in November 2018 (at [34]). Accepting that, his Honour concluded for that reason, the presumption of equal shared parental responsibility did not apply (at [33]).
His Honour referred to the mother’s allegations that the father had attempted to poison her between 2010 and 2013 and that when she was admitted to hospital suffering from the effects of the poison, the mother alleged that the father had falsely told the hospital staff that she had hepatitis.
As to this, the primary judge did not accept the mother’s allegations. He noted that she had made no report about the alleged poisoning at the time and first made the complaint after the parenting proceedings commenced. Further, however, his Honour pointed to the hospital records relevant to the mother’s admission which showed a diagnosis of acute viral hepatitis. The mother’s allegation was investigated by the police who interviewed the father and the mother’s medical records were inspected by a police forensic medical officer who confirmed that the mother’s reported symptoms were consistent with acute viral hepatitis (at [45]–[47]).
As to the assertion that the father had sexually assaulted their daughter when she was an infant, his Honour noted that the mother made no complaint about her concerns to any relevant person. The family general practitioner Dr J gave evidence. His Honour noted and accepted that she recalled the mother coming in with the child with a swollen vulva but she had no recollection of seeing any blood around her vagina as the mother said, nor, his Honour said, had Dr J ever reported or notified the relevant child welfare authority of suspected child abuse in relation to this child (at [48]). Dr J agreed that the child had been brought in with a swollen vulva and painful urination but said that “there was nothing to reference any vaginal bleeding” of the parties’ then infant daughter in her clinical notes made that day.[2]
[2] Transcript 1 August 2019, p.567 lines 21–44.
As to the mother’s belief that the father had planted a listening device in her car, his Honour said that she produced no admissible evidence to support the assertion and rather relied on a conversation she had had with the proprietor of a “spy shop” who said it was a listening device. It was given to police who examined it but did not confirm that it was a listening device (at [51]).
While his Honour accepted that the mother believed these allegations and held those beliefs at the time she said they occurred, he did not accept that they had in fact happened.
Clearly then, his Honour considered the allegations and made findings which were not in accordance with the mother’s submissions (at [76]). However, his findings were open on the evidence and no error arises.[3]
[3]Edwards v Noble (1971) 125 CLR 296 per Barwick CJ at 304.
Next, the mother contends that the primary judge erred in his findings about the mother’s commitment to encouraging the younger child’s meaningful relationship with the father.
The thrust of the mother’s challenge to his Honour’s findings is that she would not foster the children’s relationship with the father if the younger child lived with her.
His Honour had the benefit of considerable professional opinion in the trial, and the effect of that opinion is the subject of another tranche of challenges to which we will come next, however, his Honour said, having reviewed the expert evidence:
86.Having experienced and observed the mother in my Court over five days of the trial and on several subsequent occasions on the return of the matter to my Court, I am completely satisfied that [the family report writer’s] opinion about the mother not altering her position or developing more insight into the children’s emotional needs is correct. Additionally, there was no evidence when the matter came back before me in January this year, that the mother had made any effort to get [the older child] to return to his father’s care or to encourage [the older child] to spend any time with his father at all.
87. I do accept the expert opinion that if I made Orders putting [the younger child] back in his mother’s principal care that his mother would, realistically, not give him any emotional permission to carry on his relationship with his father and would do nothing to facilitate it.
88.Whilst the mother was very forceful in her efforts to get me to have [the younger child] interviewed again by [a senior Family Consultant] at the same time as [the senior Family Consultant] interviewed [the older child], I did not consider that necessary as there was absolutely no evidence before the Court, even in the fresh evidence put before the Court by the mother at the time, that supported any sort of finding that [the younger child’s] relationship with his father was not going well, that [the younger child] was being harmed in any way or that [the younger child’s] views needed to be ascertained again. Nothing [the older child] was reported to have said to [the Family Consultant] shed any different light on that.
89.I do not accept that [the younger child] is at an unacceptable risk of physical or emotional harm in the father’s household as the mother advances. Furthermore, I do not consider that the father is implacably opposed to [the younger child] maintaining a relationship with his mother or even with his siblings. He agreed to occasions last year when the boys went and spent time with their mother. He agreed to occasions when they spent time with their young adult sister.
90.On the contrary, I am quite satisfied that if [the younger child] was to go back to his mother’s care because of a perceived need to be living in the same household as his older siblings, his relationship, like theirs, with the father would most probably cease to exist in a meaningful way within a short space of time. That would, I am satisfied, not be due to his own consideration of his experiences with his father but because of his consciousness of the fact that is what his mother expected of him in order to receive her love and affection. That is most definitely not in [the younger child’s] best interests, in my judgment.
His Honour’s findings were plainly open to him and were based not only on the opinions of the experts, but his own observations of the parties, in particular the mother, through the frequent court appearances before him.
The mother further challenges the primary judge’s conclusion that she was not committed to change through psychotherapy. Again this conclusion was well open to the primary judge and, as the evidence disclosed, the mother had not engaged in psychotherapy in any meaningful way.
We find no error in his Honour’s findings.
The expert opinions (Grounds 5, 6, 7, 8, 9, 12 and 13)
This group of grounds of appeal challenge the weight given by the primary judge to the various experts or, in relation to the evidence of the psychologist who gave evidence for the mother, the failure to attribute sufficient weight to her evidence.
The weight, or importance given to evidence in a hearing, is, quintessentially, a matter for the trial judge whose assessment of the importance of evidence is informed by having seen and heard the parties. Appellate intervention requires the appellant to show that the primary judge’s evaluation of the evidence or the orders made was “unreasonable or plainly unjust” or “plainly wrong”.[4]
[4] House v The King (1936) 55 CLR 499 at 505; Norbis v Norbis (1986) 161 CLR 513 at 539–540.
As we have said, his Honour had the benefit of a number of professional opinions prepared over the life of the litigation on the issue of the children’s best interests, including a report which the mother had obtained from a psychologist.
The family therapist who reported to the Court in June 2019 said that the children were not “encouraged or supported” to value having a “separate, secure and safe relationship with both parents or in particular with their [f]ather”. She thought the older child’s emotional development had been hindered by being exposed to the conflict between the parents. She said that the family therapy had led to improvements and observed that the father wanted the children to have a relationship with him (at [56]).
His Honour referred to the family therapists’ evidence about the children’s time with the mother where she said that supervised time should only commence:
62.… after the mother has received psychological therapy herself in respect of all of her feelings about the father. The family therapist said that in her opinion the mother appears to have no real self-reflection or insight into her own responsibility for the situation she is currently in and that she needs to develop some of that before she started seeing the boys again.
A psychiatrist, Dr G, was engaged by the ICL to assess the parties and report to the Court. His Honour said:
65.Reporting on the mother, the psychiatrist opined that she has “developed a syndrome of chronic psychiatric dysfunction” and that she presents with a “chronic syndrome of anxiety which appears to have arisen in 2013 and which has fluctuated without management since that time.” He advanced the theory that this anxiety is linked to the mother’s perception about adversity in her relationship with the father. He said her anxiety totally impairs her capacity to work on a plan to develop some form of post-separation parenting plan with the father and that it means that her parenting approach will be marked by her fear of the father, which must have some form of adverse influence on the children.
66.The psychiatrist said he believes the mother needs urgent psychiatric assessment and management to reduce her levels of subjective distress and to stabilise her function…
His Honour further relied on the opinion of the family report writer, Ms H who gave evidence of the children’s views, and in particular, in which the younger child expressed a wish to spend equal time with both of his parents, which, his Honour observed was at odds with the mother’s perception that neither child wished to spend time with the father.
Dr N, a psychiatrist, offered an opinion about the mother’s mental state. The mother was referred to Dr N by her general practitioner, Dr J. Dr N said she was approached to provide a report for the Court. She subsequently saw the mother as her treating psychiatrist on six occasions from November 2018 until June 2019. Dr N concluded that the mother did not have a severe mental illness or an Anxiety Disorder. She prescribed no medication.[5] In her oral evidence, Dr N said that she had accepted the mother’s history as conveyed to her and based her opinion on the history, her observations, and documents provided to her by the mother.[6]
[5] Affidavit of Dr N filed 12 July 2019, paragraphs 15–16.
[6] Transcript 2 August 2019, p.723 lines 1–4.
The primary judge did not accept Dr N’s opinion. Important to that conclusion was the fact that, as Dr N freely conceded, she was not in possession of all of the facts and circumstances available to Dr G including the mother’s claims that the father had tried to poison her. In short, the primary judge preferred the evidence of Dr G as to his assessment of the mother (at [75]).
The mother also contended that the primary judge placed too little weight on the evidence of her general practitioner, Dr J, in relation to the mother’s belief that the parties’ now adult daughter was sexually abused by the father as an infant. As we have said, the primary judge was unpersuaded that Dr J’s evidence established the fact sought to be established by the mother, which finding was entirely open to the primary judge.
His Honour’s assessment of the importance of the various expert opinions to his ultimate conclusion shows no error.
Risk, supervision and relationships (Grounds 10, 11, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23)
We have set out above the primary judge’s conclusions at [88]–[90] about the risks posed to the younger children by the parties’ competing proposals. The primary judge went on to say:
94.It is a very difficult matter to consider making no order for time between [the younger child] and his mother on an ongoing basis. Already, [the younger child] has been living with his father since September 2018 with fairly limited contact with his mother and his elder sister and now, since the end of January, probably very little time with his [older] brother…
95.I am of the view that the time that [the younger child] spends with his brother and his sister should be a matter for his father to determine, in discussion and negotiation with [the younger child’s] sister and brother. I am satisfied that the father, as he has in the past, would agree to reasonable proposals put to him by his children that would enable them to spend time with [the younger child] in ways that would not bring [the younger child] into contact with the mother without the father’s permission. I expect that if [the older child] wants to spend time with his little brother that he would be happy enough to spend that time in the company of his father as well, and that they could work out such arrangements. So, I will not make any orders that specifically deal with [the younger child] spending time with his siblings.
96.After considering the evidence and the submissions of counsel for the ICL and counsel for the father, I have determined that I will not make orders that do not provide for any contact between [the younger child] and his mother, but rather that I will make Orders that provide for [the younger child] to spend time with his mother on a limited, supervised basis. [The younger child] is only 10 years old, turning 11 in June, this year. Until he was 9 years old, his mother had been his principal carer all of his life. He has had very little contact with her and not seen her much since September 2018. I do not consider that it is in his best interests to continue not seeing her for the indefinite future.
97.I am conscious of the expert opinion that there should be no contact with the mother until she demonstrates some attitudinal change that is only likely to be brought about with regular psychotherapy. The mother has to be committed to that change for the psychotherapy to work. I am quite satisfied that the mother is not committed to that change at this point in time. She is convinced in her beliefs about the father and does not consider that there is a need for change. She believes that the fact that the two elder children have aligned with her is evidence of the righteousness of her position. If I made an order that [the younger child] does not spend any time with the mother until she demonstrates change, I expect that would mean he does not get to spend time with her for a very long time, if ever. I consider that would be counter-productive for [the younger child] and the father’s relationship with him.
98.I am satisfied that supervision of [the younger child's] time with the mother at a children’s contact centre will provide [the younger child] with the protection needed from inappropriate influence by his mother. I have every expectation that properly qualified and trained supervisors will not permit the mother to speak with [the younger child] during such visits in an inappropriate way about parenting matters and other adult issues. If the mother is unable to restrain herself from doing so, I would expect the supervised time to be suspended. The mother will need to be conscious of that during her visits.
The mother contended that the primary judge erred in finding that the younger child is not at risk in the father’s household (Grounds 10, 14, 16 and 17), that the father will facilitate the younger child’s time with the mother (Ground 15), that the mother poses a risk of inappropriate influence on the younger child (Ground 20) and in concluding that time to be spent between the mother and the younger child should be supervised (Ground 21).
The mother’s argument that the younger child is at risk in the father’s household stems from her contention that the father was abusive and violent and he had inappropriately disciplined the children, in particular the older child. The mother placed great weight on an incident in September 2019 in which the older child described himself as being “pinned” against the wall by the father. In her oral submissions, the mother spent a very long time arguing that documents before the primary judge supported her contentions of violence and she argued that the primary judge did not properly assess the risk to the younger child.
It must first be said that, objectively, the documents do not unequivocally support her contention as to the father’s violence. To give just one example, the mother’s general practitioner, Dr J’s report of 28 September 2018 referring the mother for a medico-legal assessment (Exhibit 13[7]) said:
… There has been a long history of domestic violence and control…
[7] This was Exhibit No. 10 in the mother’s Exhibit Bundle 3.
While the mother argued that Dr J’s comment was proof positive of the father’s violence, the doctor had treated the mother and the children and it was not suggested that she was the general practitioner for the father. Her comment therefore clearly reflects what the mother told her. Equally, the mother relied on the doctor’s recollection of seeing the parties’ daughter as a new born, with a swollen red vulva as confirming her contention that the father had sexually abused the baby.
In short, the mother’s submissions about the asserted risk to the younger child rested on her views about how the father had behaved in the past. As we have already indicated, the primary judge rejected those allegations, as we have said, it was open to him to do so.
The grounds about risk must fall in the same way.
It should be noted that as part of these grounds of appeal, the mother contends that the primary judge failed to give proper consideration to what she said was the younger child’s “change of mind” about living with the father. There was nothing in the mother’s written submissions which supported this ground and we do not propose to rummage around in the evidence to try to understand the argument being made. [8] All of the primary judge’s findings of fact were open to his Honour and no error has been demonstrated. This ground too fails.
[8] See Bahonko v Sterjov (2008) 166 FCR 415.
Supervision
The primary judge ordered the mother’s time with the younger child be supervised. She argued that there was no proper basis for ordering supervision and the primary judge was in error to do so.
His Honour’s order was solidly based upon the evidence of the family therapist and that of the author of the Family Report both of whom at first recommended supervised time but later considered that the mother should have no time with the child until she had had therapy to change her attitudes and beliefs (at [97]).[9]
[9] See also Transcript 1 August 2019, p.598 lines 29–40.
These grounds also challenge the primary judge’s finding that the younger child needs to be protected from the mother’s inappropriate influence. Those findings were entirely supported by the evidence.
The mother contended that his Honour’s order as to contact between the siblings was said to be in error as was his conclusion that it would not be in the younger child’s best interests to have telephone contact with the mother (Grounds 18, 19, 22 and 23) (at [102]). These findings were amply supported by the evidence and the facts as found by the primary judge and, indeed, we consider the findings were driven by the force of the evidence.
No error has been demonstrated.
The appeal against the parenting orders will be dismissed.
THE PROPERTY SETTLEMENT APPEAL (PART OF THE FIRST APPEAL)
We will set out the factual context to his Honour’s findings in relation to the property settlement aspect of the matter to aid understanding of the challenges on appeal.
In December 2011 the parties bought and commenced living in the former matrimonial home at II Street, Suburb JJ (“the matrimonial home”). The matrimonial home was sold prior to the separation of the parties in 2017 for $1,670,000. After discharging the mortgage and paying off a business debt, the balance of the proceeds $410,000, was placed in the trust account of a firm of solicitors.
The father is a finance professional and was a partner in a finance business, D Pty Ltd which operated as a partnership between the father and Mr P. In July 2016, the partnership between the father and Mr P ceased and the father purchased the clients of Mr P through E Pty Ltd, which is the trustee of the family trust of the father and the mother. The finance business continued to trade as D Pty Ltd. In June 2018, an independent expert valued the finance business at $612,335.
The father and the mother are the sole directors of E Pty Ltd and the parties each own one half of the shares in the company and are the beneficiaries of the trust.
Turning then to the submissions made and the orders sought by the parties as to property settlement.
The mother at trial sought that she receive 70 per cent of the net property pool and 50 per cent of the superannuation. She contended that the primary judge take a two pools approach as to the property interests and the superannuation. The father sought orders that he receive 60 per cent of the net property pool and the mother receive the remaining 40 per cent. The father contended that the property settlement be approached by looking at the net property and superannuation in one pool. The primary judge accepted that the one pool approach was appropriate in this case (at [138]).
At the commencement of the relationship the father’s parents gave him $80,000 as a gift. During the trial, the father conceded that this contribution was early in the relationship and was unlikely to shift the equality of contributions made by the parties during the relationship up until the point of separation (at [142]). The father also submitted that, while the relationship was long and may have affected the mother’s earning capacity, during the marriage the father paid for the mother to complete her university degree which equipped her with professional skills and left her with no HECS debt.[10]
[10] Father’s affidavit filed on 12 July 2019, paragraph 67.
The primary judge found that the assets of the parties included separate motor vehicles owned by each of them, a personal bank account of the father, a joint bank account of the father and his current partner, furniture and other chattels (including jewellery) each of the father and the mother valued at $5,000 each and E Pty Ltd.
His Honour identified the superannuation interests of the parties, with the father’s interest being valued at $388,305 and the mother’s interest valued at $126,774 (at [136]).
Before the hearing, amounts of $150,000 and $85,000 had been advanced to the father and mother respectively as interim litigation funding orders. In considering the property of the parties and each of them, the primary judge also determined these amounts would be “added back” into the property pool. He also, in the same way, added back the sum of $50,000 which had been paid to the mother as interim spouse maintenance, but which the mother said she had spent on legal fees.
His Honour considered the liabilities of the parties. In relation to the 2017 tax year, the ATO assessed and determined that the Herbert Family Trust owed to them $38,460.63. The mother also owed a sum of $1,107.39. His Honour determined that these funds, as well as any interest owed to the ATO, be taken out of the trust account of a firm of solicitors which held the remainder of the sale proceeds of the matrimonial home (at [132]).
The primary judge found at [139] that the total net value of the property, notional add backs and superannuation amounted to $1,572,916.
As to the contributions made by the parties during the marriage, his Honour noted that both parties worked throughout the duration of the relationship and assisted in the raising of the three children of the marriage. After separation, the mother “principally cared for the children whilst doing some [casual work], particularly after the [two younger children] went into the father’s care in September 2018” (at [146]) and the father continued to work in the finance business and took primary care of the two younger children from September 2018 until January 2020. The primary judge concluded that the contributions made by the parties during the marriage and post-separation were equal (at [145] and [148]).
His Honour then determined whether a further adjustment should be made with regard to s 79(4)(e) and s 75(2) of the Act. He found that the father has a taxable income of $160,000 however, in the future, this could be in the order of $200,000. His Honour further found at [150] that the father would have an “advantage of being able to reduce his own taxation burden through the ongoing use of the family trust and distributions of income to his parents in the same way as he has in the past”. The mother, although being a qualified educator, does not have a history of stable employment and “has far less of an earning capacity” (at [151]) when compared to the father. Noting the income earning disparity and capacity of the parties, the primary judge made an adjustment in favour of the mother of 10 per cent (at [154]).
In the end result, the primary judge made orders that the net property pool be divided as to
60 per cent to the mother and 40 per cent to the father. His Honour made orders for the mother to retain as her own property: motor vehicle 1, all furniture and personal chattels in her possession and the balance of the money held in the trust account of a firm of solicitors. The mother was to transfer all of her right, title and interest in E Pty Ltd to the father. His Honour further ordered for the father to retain as his own property: motor vehicle 2, all furniture and personal chattels in his possession, all shares in companies and loan account balances in relation to D Pty Ltd, the money in his personal bank accounts and an interest in a timeshare.
In relation to the superannuation of the parties, the primary judge ordered the mother to retain her interest in the Herbert Group Superannuation Fund. Further orders were made to effect the division of the father’s superannuation on the basis that the mother receive $273,226 as a base amount in a splitting order (Order 29) and for the father to pay to the mother $263,630 (and less a sum of $7,000 if the father elects to transfer his timeshare interest to the mother and $300 in respect of an outstanding costs order owed by the mother to the father) within three months (Order 34).
The primary judge rejected the mother’s submissions that the father had hidden funds and had failed to disclose property interests. At trial, the mother contended that the father had not disclosed an interest in a company. The father denied any involvement with that company, neither had he ever held shares or other interests in the company. Notwithstanding an ASIC search of the company which showed a “Mr Herbert” with a different date of birth to that of the father as holding shares in the company, the mother continued to assert that the father had an interest in the company and had failed to disclose it.
Six grounds of challenge were mounted in relation to his Honour’s property settlement orders. As previously mentioned, Ground 29 was not pressed.
Failure to disclose (Ground 24)
It was asserted that the primary judge erred in not finding that the father had failed to make proper financial disclosure and had hidden funds. Support for the argument was said to be found in three matters, that the father:
·had not disclosed a timeshare interest in a resort;
·had “[u]nexplained funds” paid to his lawyers from an “otherwise undisclosed bank account”; and
·had repeatedly refused to disclose financial documents requested by the mother.
The timeshare interest that the mother contended had not been disclosed by the father was in fact a gift to the parties from the father’s parents received during the marriage. The mother ascribed a value to that interest of $7,000 albeit without reference to “reliable, expert evidence”. The primary judge did not accept her ascribed value (at [112]).
However his Honour said at [113] that in considering the orders to be made he would give the father the option of transferring the timeshare interest to the mother for her asserted value of $7,000 since she had said that she would accept its transfer at that value.
The asserted “[u]nexplained funds” were $45,000 which the father had disclosed he had paid in legal fees from “a bank account held by him”. This amount was notionally added back onto the balance sheet against the father because it was “[c]apital generated by a business asset of the parties post-separation” (at [131]). Accordingly there is no substance in the assertion that these were unexplained funds.
There is no doubt that on 28 August 2018, on the mother’s application, the primary judge found that the father had contravened an interim order for particular disclosure.[11] This became a pivot for the mother’s submissions that the father had hidden assets and generally failed to disclose his true financial position.[12]
[11]Herbert & Herbert (No. 3) [2020] FamCA 603 at [83].
[12] See for example, Transcript 11 November 2019, p.953 lines 16–29.
As to the mother’s claim that the father had repeatedly failed to disclose financial interests, the primary judge said:
140.I totally reject the proposition advanced by the [mother] continually throughout the lead up to the trial and at the trial that the [father] had failed to disclose property interests and had hidden funds. The mother’s completely misguided assertions that the [father] had an undisclosed interest in a [construction company] was a good example of the mother’s unfortunate approach to this issue. Despite the evidence to the contrary, she could just not accept that the [father] had no interest in such a company. Sadly, the [mother] could not even accept that he did not secretly own the construction materials supply company … which is actually part of a multinational group of companies originating in Europe.
In oral argument and in illustration of her point that the father had failed to make proper disclosure, the mother referred to an affidavit sworn by her in November 2019 which she said proved the point. We were unable, even with the document in front of us, to understand the submissions and notwithstanding considerable effort during the appeal hearing, the mother could not make a coherent submission about it. Again, we do not propose to rummage around in the submissions or evidence to try to make sense of a ground to which no written argument was directed and in circumstances where the mother’s submissions are unable to be understood.
This challenge is not made out.
Valuation of the finance business (Ground 25) and the father’s “negligence” (Ground 26)
Next, the mother complained that the primary judge failed to take into account “the discrepancy between the value of” the father’s finance business at the time of purchase and the valuation at the date of hearing.
Notwithstanding the mother’s contention that the value of the finance business was higher than assessed by the single expert, his Honour accepted that the present value of the finance business was $612,335 (at [114]).
The mother also argued that since the purchase price of the business was greater than the value then before the Court, the diminution of value was due to the father’s negligence in failing to obtain a restraint of trade agreement in relation to a former staff member. In rejecting the argument, the primary judge noted that the mother asked the father no questions on the point and failed to make out any evidence to support the order she sought (at [117]).
His Honour’s conclusion was entirely open to him and no error is demonstrated.
Interim spouse maintenance (Ground 27)
As we have already indicated, before the commencement of the trial, the mother was paid $50,000 as interim spouse maintenance from the balance of the sale proceeds then held in trust for the parties. Rather than using that money for her support, the mother instead paid the money to her mother in repayment of an earlier loan used to pay her legal fees. The primary judge concluded that the funds, having been applied to the payment of legal fees, would be “added back” to the property available for division as he had in relation to other advanced sums (at [122]).
In oral argument on the appeal, the mother contended that it was unfair of his Honour to adopt that approach because, she said, if money is paid to her as spouse maintenance, she was entitled to do with is as she wanted and his Honour in adding that amount back into the pool of the parties’ property did not consider it as her money.[13]
[13] Transcript 4 March 2021, p.58 line 21 to p.59 line 9.
Notwithstanding the payment by the father to the mother of $50,000 was initially categorised as an interim spousal maintenance payment, it was open to the primary judge at the final hearing to have regard to the actual use to which this payment was put by the mother, namely the indirect payment of her legal fees, rather than being constrained by the source of power used to effect its initial payment to the mother. His Honour’s approach was consistent with the law and no error is demonstrated.[14]
[14] See Chorn and Hopkins (2004) FLC 93-204 at [54]–[60].
$104,000 withdrawn by the father in February 2017 (Ground 28)
The amount of $104,000 was transferred by the father from the business trading account, which was an account that could be operated by both parties, to one in his sole name and he thereafter spent the funds on running costs incurred in the finance business. The father’s evidence was that he took this step to stop the mother who had earlier accessed the account and removed money (at [126]).[15]
[15] See also Transcript 30 July 2019, p.255 line 11 to p.257 line 20.
The primary judge said of this transaction:
126.The [mother’s] evidence established that an additional amount of $104,000 had been withdrawn from the bank account that both the [father] and the [mother] accessed in February 2017. The [father] conceded he had withdrawn that money. He said that he had transferred it to another account that he had established in his own name that only he could draw on. He said he did that in response to the [mother] having already unilaterally withdrawn approximately $38,000 just before that which she then used to pay the expensive private school fees for the two eldest children for the whole of the 2017 school year. He said he took all of the remaining funds out to secure them for the use of the business, as they were needed for paying wages and other business expenses. The [mother] did not challenge any of that evidence in cross-examination. She did not suggest to the [father] that he had not spent all of that money on business or reasonable living expenses. Accordingly, I will not notionally add any of the $140,000 back to the property pool.
The mother baldly argued that his Honour was wrong in failing to add the money back. Having considered the evidence to which his Honour referred and his reasons, we see no error in his not adding that sum back to the property pool.
Failure to give reasons (Ground 30)
The mother argued that there was a great deal of evidence before the primary judge to which he made no reference in determining the property settlement issues.
Of course, the purpose of giving reasons is to enable the parties to understand the process by which the decision was reached.[16] It is not a roll call of the evidence.[17] His Honour’s reasons make it entirely clear why he made the orders he did and the reasons for them.
[16]Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267.
[17] See Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, per Mahoney JA at 385–386.
The challenges to the property settlement orders will be dismissed.
DISMISSAL OF CONTRAVENTION AND CONTEMPT APPLICATIONS AND VEXATIOUS PROCEEDINGS ORDER (THE SECOND APPEAL)
On 23 July 2020, the primary judge dismissed six contravention or contempt applications brought by the mother against the father and further, ordered that pursuant to s 102QB(2) of the Act, she be prevented from instituting further contravention or contempt proceedings against the father in a court having jurisdiction under the Act.
In the second appeal, the mother challenges the dismissal of the contravention and contempt applications and the vexatious proceedings order.
The substantive parenting and property settlement orders having been made on 25 March 2020, the primary judge listed the mother’s applications for hearing on 6 May 2020. His Honour also made an order pursuant to s 102NA of the Act to provide legal representation to the mother because there was an outstanding Protection Order then in place and the mother was prevented from directly cross-examining the father. The making of the s 102NA order required an adjournment and the applications were stood over for hearing to another date.
On 6 May 2020, the mother filed three more applications, two of which alleged the father was in contempt of orders and the other alleged contravention of the orders. On 3 June 2020, the mother filed two more applications asserting contempt and contravention by the father.
In late June 2020 the father filed an application seeking all of the extant contravention and contempt applications be dismissed and that the court make a vexatious proceedings order.
On 3 July 2020 the mother was called on to show cause why the applications for contravention and contempt should not be summarily dismissed in accordance with s 45A(2) of the Act. The mother withdrew one allegation of contempt alleging failure to disclose financial information. His Honour noted that, in his view, the application was bound to fail in any event (at [17]). That left six applications alleging either contravention or contempt against the father for breaching orders.
The six remaining contempt or contravention applications were heard by the primary judge on 10 July 2020. The mother was legally represented on that day. Each application was dismissed as having no reasonable prospects of success.
The primary judge also made an order for costs against the mother in the sum of $3,936.23. The mother appeals this order.
The contempt and contravention hearing of 10 July 2020
Contravention application filed 25 October 2019
On 20 March 2018 the following order was made:
That neither parent is to physically discipline the children.
This contravention was said to relate to the father’s alleged disciplining of the older child on 9 September 2019 in breach of the 20 March 2018 order.
The evidence said to establish the breach was a text message apparently sent to the parties’ adult daughter by the older child on 9 September 2019 and in it the older child refers to something that happened “the other day”. Whilst the primary judge concluded that because of the standalone provision of s 69ZV, the rule against hearsay did not apply in child-related proceedings to evidence of a representation made by a child, in the context of a contravention application, the primary judge did not give much weight to that evidence (at [29]–[30]).
The mother also sought to rely on the father’s affidavit filed in the parenting proceedings in which he set out his account of the incident, which the mother submitted proved the alleged contravention (at [32]). It is to be observed that the father’s account is quite different in substance to the child’s account conveyed to the Court by the mother.
Having expressed considerable reservation as to whether the mother ought to be permitted to rely on the father’s evidence filed in the parenting matter in the contravention application, the primary judge noted that the father’s affidavit referred to an incident which occurred on 11 September 2019, whereas the evidence on which the mother relied to prove the contravention referred to an incident said to have happened on or before 9 September 2019.
That being the case, the primary judge found that the evidence the mother adduced in support of the alleged contravention did not establish the case which she asserted and he concluded that as the application enjoyed no reasonable prospects of success it would be summarily dismissed (at [37]).
Contempt application filed 22 January 2020
This application alleged contempt in that the father physically disciplined the older child on 9 January 2020. The breach of the order was said by the mother to be the father “grabbing” the child and “pushing him up against a wall” (at [39]).
The evidence supporting the allegation was the mother’s account of what the child told her and the mother’s account of a conversation between the maternal grandmother and the older child to which the mother was not party.
Having pointed out the evidentiary frailties of the evidence said to support the charge, the mother’s lawyer then sought to rely on a statutory declaration sworn by the child himself setting out the circumstances of the incident (at [41]). The statutory declaration was annexed to an affidavit sworn by the mother and filed on 2 May 2020.
His Honour refused to permit reliance on the child’s statement on the basis that it was hearsay, being a statement made by a person who is not to be called as a witness, his Honour not being prepared to permit the child to give evidence (at [41]–[42]).
The primary judge said that the mother’s account was hearsay and the child’s declaration was inadmissible and, further, because contempt proceedings, unlike contravention, are not child-related proceedings the rules of evidence do and should apply and s 69ZV of the Act is not available (at [42]).
His Honour concluded that the contempt application had no prospects of success and summarily dismissed it.
Contravention application filed 6 May 2020
By this application, the mother alleged that the father contravened Order 4 made on 5 February 2020 which provided:
That commencing this Sunday, 9 February 2020, [the older child] shall spend time with the father and [the younger child] from 2.00 pm until 6.00 pm each second Sunday afternoon and he shall spend such other time with his father and/or his brother as may be agreed between [the older child] and his father from time to time with the arrangements for [the older child] to get to and from his father’s care to be made between him and the father.
The alleged contraventions were said to have occurred on 9 and 23 February 2020.
His Honour first noted that there was no evidence that any arrangement had been reached with the father and the older child for those days. He further observed that the mother’s evidence and her solicitor’s submissions presumed that the order meant that the children should see each other in the father’s absence and on that basis, the allegation of contravention was based.
His Honour said that the order did not require the time spent to be in the absence of the father and the application was based on a misapprehension. The application was summarily dismissed (at [51]).
Contempt application filed 6 May 2020 (in relation to contact)
This contempt application filed on 6 May 2020 related to the same incident said to have occurred on 9 February 2020. This application was dismissed because, as with the contravention application relating to the same incident, it too had no reasonable prospects of success because there was no admissible evidence to support the allegation and the additional requirement of establishing a flagrant challenge to the authority of the Court had not been satisfied (at [53]).
Contempt application filed 6 May 2020 (in relation to denigration)
This application alleged that the father on 9 February 2020 breached a non-denigration order made on 20 March 2018.
Order 13 of 20 March 2018 was (at [54]):
That neither parent is to denigrate the other parent, or discuss adult issues with the children in the children [sic], or in their presence or hearing.
The evidence relied on by the mother to prove this alleged contempt was said to be a recording of a conversation between the maternal grandmother and the father and said to have taken place in the presence of the children. Neither the recording nor a transcript of its contents nor an affidavit of the maternal grandmother was before the Court, nor indeed was it suggested that the mother was present during the conversation. His Honour rejected the evidence as inadmissible.
Further, his Honour noted that there was no evidence that either child had been sufficiently close to the father and the maternal grandmother to hear what was alleged to have been said.
This application was summarily dismissed (at [57]).
Contempt application filed 3 June 2020
This contempt application alleged that on 12 April 2020, the father contravened Order 14 made on 25 March 2020 that said:
That [the younger child] shall spend such time with [the older child], and his young adult sister… as is arranged by agreement between the father and [the older child] and/or [the adult daughter].
In essence, the mother, relying on text messages between her daughter and the father, contended that the daughter attempted to make an arrangement to see the younger child and the asserted contempt was that the father did not make the arrangement.
The evidence showed that the daughter requested time with the younger child and the father insisted that he be present to supervise the time.
The order does not provide that the time between the siblings was to be supervised, however, the primary judge observed that it provided that time be agreed between the children and the father, and here, his Honour said, there was no agreement as between them (at [62]).
His Honour summarily dismissed this application (at [63]).
Turning then to the mother’s grounds in respect of the second appeal, the mother relies on 15 challenges to his Honour’s orders. The Summary of Argument filed on 16 October 2020 gives no help in understanding the challenges. Again, during the appeal hearing, considerable time and effort was spent in discussion with the mother attempting to understand the complaints.
Denial of procedural fairness (Ground 1)
Here, the mother argues that the primary judge failed to afford her procedural fairness in not allowing her to file an Application in a Case at the commencement of the contravention proceedings. It seems that the application on which the mother sought to rely was one which set out the orders sought by the mother in the event that the primary judge found the contravention or contempt applications proved.[18] When the mother sought to rely upon this application, his Honour commented:[19]
HIS HONOUR: … Well, you can hang onto that. They can just be handed up as a draft of orders, if we get to that point…
[18] Transcript 3 July 2020, p.6 lines 1–2.
[19] Transcript 3 July 2020, p.7 lines 6–7.
Axiomatically, what the mother sought by way of remedy should her applications for contravention and contempt have been successful, had no relevance to whether or not the alleged breaches that she asserted could be proven.
Accordingly, his Honour’s deferral of considering any application for variation of the parenting orders was not a denial of procedural fairness to the mother in the presentation of her contravention and contempt applications.
This ground will be dismissed.
Challenges to the contravention application filed 25 October 2019 (Grounds 2, 3, 4, 5, 6 and 7)
It was argued that his Honour gave too much weight to the “discrepancy” in the date of the alleged contravention. The alleged contravention was said to have occurred on 9 September 2019. The mother attempted to support the contravention by relying on evidence which the primary judge, entirely correctly, regarded as deserving little weight. The attempt to rely on the father’s evidence about an event which occurred on 11 September 2019 was also rejected on the basis that it related to a different date.
The mother’s evidence clearly asserted a breach on a different date to which the father’s affidavit spoke. In bringing the application she was obliged to identify the date on which the alleged breach occurred, which she said was 9 September 2019. In fact, as the primary judge pointed out to the mother’s lawyer, the text from the older child to his sister on which this was based, spoke about an event that happened “the other day” which clearly does not refer to 9 September 2019, the day on which the text was received.[20]
[20] Transcript 10 July 2020, p.5 lines 11–31.
Thus, there was no other evidence to support the mother’s assertion that something relevant happened on the nominated date.
The next two grounds contend that the primary judge failed to give the evidence contained in the text messages, sufficient probative value and that his Honour erred in failing to exercise the discretion to require the father to give evidence pursuant to s 69ZX(1) of the Act. The question of weight that was to be placed upon the text messages which were admissible given the provisions of s 69ZV of the Act was a matter for the primary judge.[21] The primary judge was entitled to give that evidence the little weight that he did.
[21] Section 69ZV(3) of the Family Law Act 1975 (Cth).
The primary judge at [35] mused that s 69ZX(1) empowered his Honour to:
…be able to direct the father to take the witness stand and make himself available for cross-examination, but I consider that would be well and truly against the principles of having to give evidence that might incriminate oneself, if one does not wish to, that normally apply in contravention proceedings that are considered ‘quasi-criminal’ in nature.
We would be hesitant to conclude that s 69ZX(1) contained the power referred to by the primary judge absent specific statutory provision overriding or qualifying the father’s privilege against self-incrimination.[22] Section 128(5) of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides that a court may require a witness to give incriminating evidence but the application of that section would have no utility in this case because a certificate must be given[23] and the mother would then not be able to rely upon any evidence the father gave to establish any contempt or contravention that she asserted.[24]
[22] Reid v Howard (1995) 184 CLR 1 at [8].
[23] Section 128(6) of the Evidence Act 1995 (Cth) (“the Evidence Act”).
[24] Section 128(7) of the Evidence Act.
In any event, even if the primary judge had the power to do so, it was not an error for his Honour to fail to require the father to give evidence that might have supported the mother’s contravention application against him.
Finally, it was said that his Honour erred in finding that the application had no reasonable prospects of success and in summarily dismissing it. Given his Honour’s findings about the evidence, no error arises from summarily dismissing the application.
Challenges to the contempt application filed 22 January 2020 (Grounds 8, 9 and 10)
Again the mother contended that his Honour erred in failing to require the father to give evidence on the application. This ground is identical to the ground that has already been rejected. In any event, the mother’s solicitor made no application that the father give evidence.
The balance of the grounds contend that the primary judge was wrong to conclude there were no reasonable prospects of success and to proceed to summarily dismiss it.
There is no force in the ground. His Honour’s conclusions were entirely correct.
The appeal against his Honour’s orders summarily dismissing the mother’s contravention and contempt applications will be dismissed.
Vexatious proceedings order (Grounds 11, 12, 13 and 14)
His Honour concluded that the mother had demonstrated a history of bringing unmeritorious contravention and contempt applications against the father.
His Honour said:
84.… As I have already mentioned, [the mother] filed some more in the lead up to the trial of the substantive applications. For convenience, I listed and heard those as part of the trial. I dismissed all those. A few of the alleged contraventions contained in those applications, I dismissed on the basis of there being no case to answer. After the trial was concluded and whilst my judgment was still reserved, [the mother] filed a contravention and a contempt application. At the time she was not legally represented. She clearly expected them to be heard before I delivered my reserved judgment, demonstrating a belief that filing the applications should somehow influence the outcome of the proceedings. Those two are amongst those that I have now determined to summarily dismiss as having no reasonable prospects of success.
85.Then, whilst waiting to have those applications listed for hearing and heard, and after I have delivered my final judgment in the parenting and property adjustment proceedings, [the mother] filed several more contravention and contempt applications. I have determined to summarily dismiss each of those as having no reasonable prospects of success. Regrettably, [the mother] has demonstrated no proper understanding of the contravention and contempt processes and the evidentiary basis upon which such applications may be sustained. [The mother] also told the Court when she was asked on one of the occasions the applications were mentioned that she was desirous of the Court sending [the father] to prison as a consequence of his alleged contraventions and contempt of the Court. Such a consequence would be, I am satisfied, totally excessive, inappropriate and disproportionate to the contraventions/contempts alleged by [the mother] (none of which were sustainable in any event). This fact, combined with the hopelessness and lack of reasonable grounds of the repeated applications filed, satisfies me that [the mother’s] contravention and contempt applications against [the father] have become vexatious and she should be made subject to an Order that prohibits her from bringing contravention or contempt applications against [the father] without first obtaining the leave of the Court. I will make such an Order pursuant to s 102QB(2)(b) of the Act.
The challenges to this order contend that the primary judge placed too much weight on the number of contravention and contempt application and failed to take into account that the mother had been successful in an earlier contravention application (Grounds 11 and 14). Further it was argued that the primary judge placed too much weight on the mother’s “comments regarding the result she wanted to see flow from the applications” and too little weight on her bona fides in bringing the applications (Grounds 12 and 13).
Further, unnumbered grounds challenging this order appear at the end of the Amended Notice of Appeal.
The unnumbered grounds contend that the primary judge erred in finding that the mother had “frequently instituted vexatious contravention and contempt proceedings”, that it was not open on the evidence to make the vexatious proceedings order and, curiously, that the primary judge erred in finding “that the Contravention and Contempt Applications were only known to him on 6 May 2020”.
Taking this last challenge first, the ground is misguided and his Honour said nothing of the sort. The comment to which this challenge relates concerned a number of applications for contravention and contempt that had not been filed and were returned to the mother under cover of a letter from the case co-ordinator.[25]
[25] Transcript 6 May 2020, p.3 lines 8–18.
There followed this exchange:[26]
[THE MOTHER]: So why didn’t she file them? Because they were very relevant. It was alienation, and there was further - - -
HIS HONOUR: Well, don’t ask me why she didn’t do something, please. I don’t know the answer to why she didn’t do something. But presumably - - -
[THE MOTHER]: Well, she - - -
HIS HONOUR: - - - I can only assume or presume – since this is the first I’ve heard of this, that she sent them back to you for you to raise with me when this matter was mentioned, and that’s why I’m mentioning it today; all right?
[26] Transcript 6 May 2020, p.3 lines 23–33.
As to the contention that the primary judge erred in finding that the mother had brought frequent vexatious contempt and contravention applications, we point to his Honour’s chronology of events and the outcomes of the applications to reject the ground without further discussion. The primary judge did not err when making that finding.
Finally, it was said that the primary judge failed to afford the mother procedural fairness by summarily dismissing all of the applications as set out in Order 1 made on 23 July 2020.
The order dismissing the applications followed his Honour’s conclusion that none of them enjoyed any reasonable prospects of success. How orders made which reflect the judge’s findings after a hearing can amount to a denial of procedural fairness is not apparent. This challenge will be dismissed.
Dealing first with the contention that his Honour failed to give sufficient weight to the mother’s success in other applications, as his Honour’s reasons demonstrate, he was well aware of the litigation history (at [83]–[85]). In April 2018 the father brought the first application for contravention against the mother, which was successful. In August 2018 the father was found to have contravened an interim order about discussing “adult issues” with the children and also having contravened an order in relation to disclosure of financial matters (at [83]).
However, as the primary judge noted in his reasons, thereafter, the mother filed many contempt and contravention applications, all of which had been dismissed as enjoying no reasonable prospects of success (at [85]).
The primary judge observed that the mother sought that the father be imprisoned should her applications or some of them succeed. Although that was the mother’s expressed position, during the hearing before the primary judge, the solicitor who appeared for her submitted “she’s not particularly pushing for jail… as long as there’s just some punitive thing”.[27] He later indicated that a “punitive thing” might be a fine.[28] His Honour noted that a penalty of imprisonment was “totally excessive, inappropriate and disproportionate to the contraventions/contempts alleged by [the mother]” (at [85]).
[27] Transcript 10 July 2020, p.12 lines 12–14.
[28] Transcript 10 July 2020, p.12 lines 25–26.
It is to be remembered here that the focus of a court in dealing with contravention proceedings is to make orders which will secure future compliance with orders and power to punish for contempt is to be used carefully and sparingly.[29]
[29]McClintock & Levier (2009) FLC 93-401; M and M (1990) FLC 92-106 at 77,709.
The mother’s expressed view, even if it be that there should be a “punitive” order demonstrates, in our view, the correctness of his Honour’s consideration.
There is no substance in this challenge.
The challenges to the vexatious proceedings order will be dismissed.
Appeal against the costs order (Ground 15)
The primary judge ordered the mother to pay the father’s costs of and incidental to the failed applications for contempt and contravention in the sum of $3,936.23, such sum to be offset against the amount the father was to pay the mother in satisfaction of the primary judge’s orders for property settlement.
Ground 15 contends that the primary judge erred in awarding costs against the mother in circumstances where she was partially successful in the proceedings. It was further argued, in an unnumbered ground, that his Honour failed to give adequate reasons for making the order. In oral submissions the mother said that the primary judge failed to take any of the evidence into consideration.
The primary judge at [92] noted that all of the mother’s outstanding contravention and contempt applications were summarily dismissed and he made a vexatious proceedings order against the mother for contravention and contempt applications. In no way could the mother be regarded as having partial success in the applications in respect of which the costs order was made.
Further, his Honour’s reasons are entirely clear and demonstrates that he considered the various matters to which s 117(2A) refer.
The appeal against the costs order will fail.
Thus, subject to the setting aside of Order 17 made on 25 March 2020, the appeal against the parenting and property settlement orders will be dismissed. The appeal against the orders made on 5 February 2021 and the orders made on 23 July 2020 will also be dismissed.
COSTS OF THE APPEAL
The mother sought to rely on her Amended Schedule of Costs filed late. Leave will not be granted as the appeal will be dismissed.
The father sought to rely on his late-filed schedule of costs. In the affidavit filed in support of the father’s application, the father’s solicitor said that on 15 February 2021 he was notified by the regional appeal registrar that the appeal hearing was listed before the Full Court on 4 March 2021. He immediately contacted the Queensland Independent Costing Services to arrange for two costs notices to be urgently prepared – one in relation to work done to date and the other in relation to prospective costs. Both costs notices were received respectively on 25 and 26 February 2021 and filed to the Court on 26 February 2021.
Taking into account that the solicitor had filed the schedules soon after their receipt and noting that the schedules were filed one day late, we will allow his application and grant the father leave to rely on his late filed schedule of costs.
The father sought costs of responding to the appeal in the total sum of $65,339.87. Counsel for the father asserted that these costs were assessed in accordance with the scale of fees set out in Sch 3 of the Family Law Rules 2004 (Cth).
However, it was later conceded that they were not in fact assessed according to the scale. Among other charges, the costs schedule makes references to costs for the “care and conduct” of the matter on the basis of “complexity, novelty or importance”[30] and the drafting of the schedule itself. Clearly the costs claimed are solicitor and client costs, rather than party and party costs. Ultimately, the solicitor submitted that the Full Court should fix a sum that is reasonable in the circumstances, submitting that the claimed amount of $65,339.87, was “reasonable”. We disagree.
[30] See r 19.18(3)(a) of the Family Law Rules 2004 (Cth).
The mother opposed any order as to costs on the basis that she is impecunious. She is currently unemployed and has debts that she is required to repay to her former solicitor, her mother and for a business evaluation. We also take into account that as a result of the property settlement orders, the mother will receive a sizable property settlement.
Despite the submissions that the approximate sum of $65,000 for costs of responding to an appeal was “reasonable”, we are of the view that a sum of $15,000 is appropriate and reasonable and an order that the mother will be able to meet from the property settlement.
I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Ainslie-Wallace, Watts & Tree. Associate:
Dated: 5 July 2021
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