Herbert & Herbert

Case [2021] FamCAFC 108

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 2020
File 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 2017

APPEAL 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…

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AGLC
Herbert & Herbert [2021] FamCAFC 108
Case
[2021] FamCAFC 108
Decision Date

CaseChat Overview and Summary

The mother and father, who were married and later separated, appealed against various parenting, property settlement, and contempt orders made in the Family Court of Australia. The mother’s appeal challenged the parenting and property settlement orders, while the father’s appeal concerned the summary dismissal of contravention and contempt applications, as well as a vexatious litigant order and associated costs. The primary judge had ordered that the two younger children live with the father, with limited contact with their mother, following interim proceedings. However, the older child ran away from his father’s house and refused to return, choosing to live with his maternal grandmother instead. The Family Consultant found that the older child was mature enough to express his wishes and preferred to live with his mother.

The court needed to determine whether the primary judge's findings regarding the parenting and property settlement orders were open to challenge and whether the dismissal of the contravention and contempt applications, as well as the vexatious litigant order and associated costs, were correct. The court examined whether the primary judge had erred in law or failed to consider relevant evidence in making his findings. The court also needed to assess whether the father’s actions warranted the imposition of a vexatious litigant order and whether the costs awarded were appropriate.

The court found that the primary judge’s conclusion that the older child was mature enough to express his wishes was not plainly wrong, and thus, the parenting order allowing him to live with his mother was upheld. However, the court found that the primary judge had erred in not considering the father’s position regarding the younger child’s contact with his older sister and set aside the relevant order. The court found no merit in the mother's other grounds of appeal and dismissed the appeal otherwise. Regarding the father's appeal, the court found that the primary judge had correctly dismissed the contravention and contempt applications, as there was no admissible evidence to support the allegations. The court also found that the primary judge had correctly dismissed the vexatious litigant application and that the costs awarded were appropriate. The father’s appeal was dismissed, and the costs of the appeal were ordered to be paid by the appellant in a fixed sum.

The court allowed the mother’s appeal in part, setting aside one order, and dismissed the father’s appeal. The court granted the appellant leave to rely on additional documents in the mother’s appeal and allowed the respondent to rely on his schedule of costs. The appellant was ordered to pay the respondent’s costs of the appeals in the sum of $15,000 within 28 days of the date of the order.

Orders

Orders of the court

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.

Background

Background to the litigation

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].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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)