HERRIOT & HOWES - [2020] FamCAFC 302

FAMILY COURT OF AUSTRALIA

HERRIOT & HOWES

[2020] FamCAFC 302

FAMILY LAW – APPEAL – PARENTING – Where the subject orders were of an interim or procedural nature directed to advancing the father’s substantive applications for contravention and contempt to a final hearing – Where there is no utility in this appeal given that the final hearing of those applications has now proceeded to completion with judgment being reserved – Where the appeal does not raise any question of general principle – Where, given the nature of the issues in dispute and the consequent need for further evidence, this Court could not re-exercise discretion even if error were established – Where an order for remitter would be nugatory given the final hearing has already proceeded – Appeal dismissed –
Costs ordered in a fixed sum.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NBA, 94AAA, 112AP, 117,
Div 13A

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Keehan v Keehan (2020) 60 Fam LR 276; [2019] FamCAFC 250
Lenova & Lenova (Costs) [2011] FamCAFC 141
McClintock v Levier (2009) FLC 93-401; [2009] FamCAFC 62
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6

APPELLANT:

Mr Herriot

RESPONDENT:

Ms Howes

FILE NUMBER:

BRC

2014

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

1 December 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

Transcript provided as reasons for judgment on 6 July 2020

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Hofstee Lawyers

Orders

The appeal from the orders made on 6 July 2020 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the fixed amount of $9,500, within a period of six months from the date of these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herriot & Howes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 50 of 2020
File Number: BRC 32 of 2014

Mr Herriot

Appellant

And

Ms Howes

Respondent

REASONS FOR JUDGMENT

On 12 July 2019 final parenting orders[1] were made by the primary judge in the Federal Circuit Court of Australia (“the FCC”) concerning X (born in 2005 and currently aged 15 years) and Y (born in 2007 and currently aged 13 years), the children of Mr Herriot (“the father”) and Ms Howes (“the mother”).
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
On 6 July 2020 substantive applications filed by the father alleging contraventions of those orders by the mother (application filed 7 May 2020) and contempt by the mother (applications filed 26 June 2020 and 1 July 2020) came before the primary judge on a first return date for mention. On that date the primary judge made interim orders and directions in those applications, including an order adjourning the proceedings to 24 July 2020, about four weeks later, for the making of further directions.
By Notice of Appeal filed on 3 August 2020 the father appeals from Orders (1) to (7) (inclusive) made by the primary judge on 6 July 2020.
On 24 July 2020 the primary judge made further interim directions and orders to facilitate the hearing of the father’s applications for contravention and contempt by another judge of the FCC, Judge Middleton, on 28 October 2020. It bears emphasis that the interim directions and orders made on 24 July 2020 are not the subject of this appeal.
The hearing before Judge Middleton proceeded on 28 October 2020. The outcome is not yet known, as his Honour’s judgment is reserved.
In my judgment, for the reasons which follow, in circumstances where the subject orders made on 6 July 2020 were of an interim or procedural nature directed to advancing the father’s substantive applications for contravention and contempt to a final hearing; and where that final hearing has now proceeded to completion on 28 October 2020 with judgment being reserved; there is no utility in this appeal.
It follows that this appeal ought be dismissed. As the appeal does not raise any question of general principle, reasons for that decision may be given in short form pursuant to s 94AAA(7) of the Act. I record that the Court’s jurisdiction in this appeal is exercised by me as a single judge pursuant to s 94AAA(3) of the Act.

Background

The father was born in 1972 and is currently aged 48 years. The mother was born in 1970 and is currently aged 50 years. The parties married in 1999 and separated in about 2012 and were divorced in 2014.
As earlier noted, X was born in 2005 and is currently aged 15 years whilst Y was born in 2007 and is currently aged 13 years.
In advance of the final parenting orders made on 12 July 2019, the position had been that X was not spending any time with the father, apparently since about August 2017. This explains the orders made on 12 July 2019 which are directed to counselling, rather than orders for time, as regards X.
Broadly stated, the orders of 12 July 2019 provide for the children to live with the mother and for the mother to have sole parental responsibility for the children, subject to seeking and considering the father’s input on decisions. From 20 January 2020 Y was to spend time with the father from after school Friday to 4.00 pm on Sunday on alternate weekends. Provision was made for X to spend no time with the father until each of X and the father had successfully engaged in counselling.
In the result, X did not resume spending any overnight or regular time with the father following the orders of 12 July 2019. For her part, Y reportedly spent no overnight time with the father in 2020 and reportedly ceased spending time with him in April 2020.
On 7 May 2020 the father filed an Application – Contravention alleging that:
a)The mother had failed to engage the child X in individual counselling as was required by the orders of 12 July 2019;
b)The mother refused to allow the child Y to spend time with the father on 20 March 2020, 3 April 2020 and 17 April 2020; and
c)The mother called the police when the father attempted to collect Y from the mother’s residence on the above occasions.
On 26 June 2020 the father filed an Application – Contempt primarily alleging that:
a)The mother had failed to engage the child X in individual counselling as was required by the orders of 12 July 2019;
b)The mother refused to allow the child Y to spend time with the father on 15 May 2020 and 29 May 2020.
On 6 July 2020 the father filed another Application – Contempt primarily alleging that:
a)The mother refused to allow the child Y to spend time with the father on 12 June 2020 and 26 June 2020; and
b)On 4 June 2020 the mother “lodged a malicious and vexatious application for a Protection Order” where there is “no domestic violence involved and the application for a Protection Order is contumacious”.

Approach of the primary judge

Review of the transcript of the proceedings before the primary judge on 6 July 2020 confirms that the primary judge made it clear to the parties that he was undertaking a directions hearing to ready the various applications for final hearing, rather than undertaking any substantive hearing of those applications. For example, his Honour observed:
So it’s just when it is that we end up setting this matter to be heard … the problem that I have at the moment, in any event, [the father], is that I don’t have room in my calendar for a full-blown contravention hearing to occur any time before, well, I would think November would be the earliest. And even then, I’ve got a few problems trying to find that spot.
The – the issue, I suppose, here today is, okay, well, you know, what happens in between now and when we actually do have a hearing.
(Transcript 6 July 2020, p.5 line 43 to p.6 line 5)
Thereafter the primary judge engaged in discussions with each party as to what had or had not occurred with respect to the orders made for counselling.
Having determined that the parties should engage with a particular family therapist (Ms B) the primary judge was plainly focused on advancing the matter in terms of the child X’s best interests. In the course of exchanges the primary judge referred to X’s best interests in the following:
HIS HONOUR:   - - - are going to be met if she has a relationship with her father that encourages her to be the best that she can be whilst also being safe for her. Now, the only way we are going to know whether such a relationship can occur is if you have a therapist, like [Ms B], who will be able to talk to Dad and will be able to talk to [X], and will be able to be in a position to see whether this is a relationship that can actually be salvaged. And it’s important for you, [the mother] to understand that that’s - - -
[THE MOTHER]:   Yes, your Honour.
HIS HONOUR:   - - - that is something that is in your daughter’s best interests. She needs to be the one to decide once she has assistance from an expert like [Ms B]. It’s not for you or me or anyone else at this point, and certainly not [the father], to decide whether everything has been met for that. So you must not do anything to get in the way of that, so that [Ms B] is looking at things. See, the thing is if – if it is that [Ms B] speaks to [X] and [X] is really just repeating things that you have told her and not using her own experience to come up with a view as to what she would like, [Ms B] is going to see that very quickly. You understand?
[THE MOTHER]:   Yes, my Honour. Your Honour.
HIS HONOUR:   Yes. Okay? Yes. So you understand that. So that’s the point, is [X], you know, she’s what, she’s going to be 15 very soon.
[THE MOTHER]:   Yes, your Honour.
HIS HONOUR:   You know, she needs to, sort of, she needs to be given that freedom by both of you and [the father] that her own views are respected, and that she has that power that her views will be very much listened to. Because as she gets older, she needs to know that she’s not just – you know, the thrall of her dad or the thrall of her mum. She needs to know that she is an individual, and her individual likes and dislikes and desires and wants are going to be respected. That doesn’t mean that she gets everything that she wants to do, because, you know, no child should be able to just do what they want, because they’re not mature enough. That’s the point of being a parent, is that you nurture your child to that point where, once they get to those ages of 17, 18, 19, and the law actually imposes the fact that they are an adult, they’re mature enough, they’ve been nurtured enough that they can actually make good choices. All right? So you understand that, [the mother]?
(Transcript 6 July 2020, p.9 line 13 to p.10 line 4)
His Honour then moved to consider the position with respect to Y and likewise determined that it would be necessary for a family consultant to interview Y. As his Honour put it:
… So if I get a family consultant to talk to her, that way, then, I will get to the bottom of what it is that’s going on…
(Transcript 6 July 2020, p.10 lines 35–37)
In explaining the process to both parties, each of whom were self-represented before him, the primary judge was at some pains to emphasise that before a “full hearing” could be had in relation to the father’s applications he needed to have the evidence of a family therapist having had the opportunity to interview and effectively determine the reasons behind the children’s apparent reluctance to spend time with the father. In short, expert evidence on the central issue earlier referred to.[2]
[2] Transcript 6 July 2020, p.11.
In determining that there would be a further mention of the matter on 24 July 2020 the primary judge had this exchange with the parties in relation to suspending the order for Y to spend time with the father pending the further hearing on 24 July 2020:
HIS HONOUR:   Okay. So what I’m going to do is this. So on 24 July, we will have this mention. So that I will be able to figure out what’s happening. I will have something from the family consultant. Okay.
[THE MOTHER]:   Yes.
HIS HONOUR:   So because I am doing that, it means that the order that, [the father], that you spend time with [Y] is going to be suspended until I make a decision on 24 July. That just means one visit that would have been normally scheduled. Because, from what it is that you’ve given me, you’ve put in a contempt order for the visit the last time, you obviously didn’t spend time with [Y] this last weekend.
[THE FATHER]:   Nothing, your Honour.
HIS HONOUR:   And I would think that you are trying to say that that would be a contempt as well. From what [the mother] is saying, [Y] is not going to want to spend time in two weeks’ time with you, and you would put that as a contempt again. I am going to just suspend it until it is that I find out what’s going on, as to whether these matters have any – you know, whether this is something that is simply a – an invention of [the mother], or whether [Y] does actually have some real concerns about spending the time with you. And then I will work out what happens if it is the latter course. If it’s the former course, then there will be other things that I can do in the meantime.
So, on that date, I will then give you the date in November that I will hear the matter. And so on. But until then, you’re to wait for the family consultants to contact you, as to, because we’ve got your contact details here, both of you. And you will see the family consultant. They will give the two of you a memorandum and give one to me. We will then discuss that memorandum on Friday 24 July, and I will work out where you go. And I will give you a date, I would think, in November, where we actually have a hearing if – if necessary. All right.
[THE MOTHER]:   Yes, your Honour.
HIS HONOUR:   Okay? All right. So, is – [the father], to start with, is everything that I’ve said to you clear?
[THE FATHER]:   Clear, and I understand everything, your Honour, that you have to tick all the boxes, and investigate any reasonable excuse.
(Transcript 6 July 2020, p.14 lines 3–42)
It is plain from that exchange that the father expressed his understanding of the primary judge’s determination to temporarily suspend the order for Y to spend time with the father and the father raised no objection to that occurring, with the father expressing his understanding of the primary judge’s conclusion that it was necessary to “investigate any reasonable excuse”. The primary judge obviously afforded the father the opportunity to query anything he did not understand but it is clear the father well understood that the primary judge’s focus was upon investigating the central issue.
The primary judge clearly had the best interests of the children at the forefront of his consideration in expressing to the parties that he was doing all that he could to make sure he had sufficient information to determine the proceedings in the interests of the children.[3]
[3] Transcript 6 July 2020, p.15 lines 6–10.
Notably, that approach is entirely consistent with authority.[4] As emphasised in those authorities, at least in relation to contravention applications, the provisions of Division 13A of the Act manifest a clear legislative intention directed only to ensuring continued and future compliance with operative parenting orders as distinct from performing any separate or discrete role of deterrence from, or punishment of, non-compliance with orders.
[4]McClintock v Levier (2009) FLC 93-401; Keehan v Keehan (2019) 60 FamLR 276.
The interim orders made by the primary judge included orders (Orders (7) to (11) inclusive) to facilitate interviews, including with Y, by an expert family consultant and for that expert to provide a brief written report to the Court. That report was completed on 20 July 2020 and was thus available to the Court on the further hearing date of 24 July 2020.
Whilst it bears repeating that the orders made on 24 July 2020 are not the subject of this appeal, the point of emphasis for present purposes is that the report from the family consultant dated 20 July 2020 highlights the very difficult dynamics in this case, including the diametrically opposed possible explanations for the expressed position of these two teenage girls. As contemplated by the expert on one view, as advanced by the father, the mother has engaged in parental alienation of the father. On the alternate view, the most influential factor in the position adopted by the girls is the father’s incapacity to prioritise their needs and his propensity to engage in coercive controlling behaviour. The expert report thus highlights the correctness of the primary judge’s approach on 6 July 2020 to prioritise investigation of the cause of the children’s apparent negativity about spending time with the father.

The father’s contravention and contempt applications render this appeal nugatory

As noted, the hearing before Judge Middleton of the father’s applications for contravention and contempt was completed on 28 October 2020 with judgment being reserved. However, critical to consideration of the mother’s contention that this appeal is rendered nugatory is the recognition that Judge Middleton is seized of the following determinations:
a)Whether or not the mother has “contravened” any of the 12 July 2019 orders within the meaning of s 70NAC of the Act;
b)Whether, if a contravention is established, the mother has a “reasonable excuse for contravening an order” within the meaning of s 70NAE of the Act;
c)Any consequential orders by reason of any established failure to comply with orders, as is provided for in Division 13A of Part VII of the Act;
d)Whether or not the power conferred by s 70NBA to vary a primary order ought be exercised, whether or not a contravention is established;
e)Whether or not any established contravention of an order amounts to a contempt of the Court within the meaning of s 112AP of the Act and, if so, the determination of punishment.
As already noted, a central issue pervading the children spending time with their father both before (in the case of X) and subsequent to the making of the orders of 12 July 2019 (in the case of both girls) is, stated broadly, whether the children have each determined for themselves not to spend time with the father as a response to the father’s behaviours (as the children themselves and the mother contends) or whether the mother has engaged in actively alienating both children from the father (as the father contends).
That central issue will likely loom large in the determinations of the subject applications by Judge Middleton, including determination of the question of whether or not the power conferred by s 70NBA to vary a primary order ought be exercised, irrespective of any contravention being established.
At the outset of the hearing of this appeal it was explained to the father that he would have the right to appeal the outcome of his applications for contravention and contempt when judgment is delivered by Judge Middleton if he is dissatisfied with that outcome. Within such an appeal it would be open to the father to challenge the correctness of any interlocutory order which materially affected the final result of the proceedings.[5]
[5] See Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.

Conversely, the father may be entirely satisfied with the outcome of the determination of his various applications and the orders made in consequence of those applications.
Alternatively it remains open of course for either party to give consideration, with the benefit of the outcome of the proceedings to be determined by Judge Middleton, to bring further parenting proceedings given that, subject to the demonstration of material change in circumstances, parenting orders are never final in the strict sense. The issues identified and discussed briefly in the expert family consultant’s report dated 20 July 2020 are complex, and made all the more difficult by reason of the ages of the two girls.
In his Notice of Appeal filed 3 August 2020 the father seeks that the orders of 6 July 2020 be set aside and that this Court order that both children spend time with him from after school Friday to 12.30 pm on Sunday in each alternate weekend. In contrast, in his Summary of Argument filed 16 October 2020 the father appears to seek orders that:
a)He have sole parental responsibility for the children;
b)The children live with him; and
c)The children spend time with the mother from after school Friday to 4.00 pm Sunday each alternate weekend.
On either iteration of these orders, the potential for conflict with the undetermined outcome of the proceedings heard by a judge in the FCC on 28 October 2020 is obvious.
The lack of any utility in this appeal is demonstrated by the feature that even if it could be concluded that the primary judge’s temporary suspension of the order for Y’s time was infected by appellable error, this Court would not

re-exercise the discretion to make parenting orders, given the nature of the issues in dispute and the ages of these children and the consequent need for further evidence, and would remit the proceedings for rehearing. An order for remitter in the circumstances of this case is completely pointless given that the hearing before Judge Middleton has already proceeded, with his Honour being seized of the issues earlier identified and with his Honour’s determination of those issues awaited.

Costs

In the event that the appeal was to be dismissed, the mother sought an order that the father pay her costs in accordance with a schedule of party and party costs filed in advance of the appeal hearing.
The father opposed the making of any order for costs against him even though, taken from his materials filed in advance of the appeal, he sought costs against the mother in the event that his appeal was successful.
The father’s opposition is essentially predicated upon his financial circumstances. He submitted that his only asset was a motor vehicle and, in summary, it was his position that he has no other assets and limited employment/income.
On behalf of the mother it was submitted that she essentially has no assets, no employment and is not receiving any child support assistance from the father. The mother has re-partnered and depends upon her present partner for financial support.
In terms of the quantum of costs, with some discounting of the schedule provided on behalf of the mother, it would be a reasonable estimation of the mother’s costs of the appeal to fix those costs at $9,500 and the mother’s counsel, in the course of exchanges at the hearing, acknowledged that amount as appropriate. The father did not advance any substantive reason for discounting the sum further.
I am satisfied that in circumstances where the father pursued an essentially meritless appeal and the appeal has been wholly unsuccessful, there are justifying circumstances for an order for costs within the meaning of s 117 of the Act.
It is well settled that limited financial circumstances ought not preclude an order for costs where such an order is otherwise justified.[6] It is equally well settled that costs ought be ordered in a fixed sum where that can legitimately be done, rather than having the parties and the Court devote further resources to an assessment of costs.[7]
[6]Lenova & Lenova (Costs) [2011] FamCAFC 141; Northern Territory v Sangare (2019) 265 CLR 164.
[7]Stopford Malloy & Malloy (Costs) [2018] FamCAFC 6.
I am satisfied that the fixed sum of $9,500 can legitimately be fixed on the material provided.
In the event that an order for costs is made, the father sought 12 months to make payment. In my judgment a reasonable balance between the mother’s entitlement to have her costs met immediately and the father’s circumstances is to allow six months for payment.
For these reasons, the orders include an order for the father to pay the mother’s costs of and incidental to the appeal in the fixed amount of $9,500 within a period of six months from the date of delivery of this judgment.
I make the orders set out at the commencement of these reasons.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 1 December 2020.

Associate:

Date: 1 December 2020