Herriot & Howes
[2021] FedCFamC1A 38
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Herriot & Howes [2021] FedCFamC1A 38
Appeal from: Herriot & Howes [2020] FCCA 3483 Appeal number(s): NOA 4 of 2021 File number(s): BRC 32 of 2014 Judgment of: STRICKLAND, AINSLIE-WALLACE & HOGAN JJ Date of judgment: 13 October 2021 Catchwords: FAMILY LAW – APPEAL – Majority decision – Where final parenting orders were made in 2019 - Where the father filed applications for contravention and contempt – Where the applications were dismissed by the primary judge – Where the primary judge misstated the law in relation to contravention/contempt applications but did not apply that misstated law – Where three alleged breaches of the orders were overlooked by the primary judge leading his Honour to err – Where the primary judge did not otherwise err – Matter re-determined – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 69ZN, 70NAC, 70NAE, 70NBA, 70NEA, 112AP Cases cited: Allesch vMaunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ibbotson and Wincen (1994) FLC 92-496; [1994] FamCA 103
Keehan v Keehan (2019) 60 Fam LR 276; [2019] FamCAFC 250
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Tate and Tate (2002) FLC 93-107; [2002] FamCA 356
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 160 Date of hearing: 12 July 2021 Place: Heard in Brisbane, delivered in Sydney The Appellant: Self-represented litigant Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Hofstee Lawyers ORDERS
NOA 4 of 2021
BRC 32 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HERRIOT
Appellant
AND: MS HOWES
Respondent
ORDER MADE BY:
STRICKLAND, AINSLIE-WALLACE & HOGAN JJ
DATE OF ORDER:
13 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Herriot & Howes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND & AINSLIE-WALLACE JJ:
By his Notice of Appeal filed 14 January 2021 Mr Herriot (“the father”) appeals orders made by a judge of the Federal Circuit Court of Australia on 21 December 2020 which dismissed three applications brought by him alleging contravention and contempt of parenting orders made on 12 July 2019 by Ms Howes (“the mother”).
It is helpful to provide some background to the present dispute to give context to the issues argued on appeal.
The parties married in 1999 and separated in 2012. They were divorced in 2014. There are two children of the marriage, X who was born in August 2005 and is 16 years of age, and Y who was born in July 2007 and is 14 years old. After separation the children remained living with the mother although both spent time with the father. In April 2018 the father commenced parenting proceedings seeking orders that the children live with him and the mother in an equal shared time arrangement. In response, the mother sought orders that the older child, X live with her and spend time with the father as she wished and that Y spend time with the father as agreed.
As part of the preparation of the matter for hearing, on 22 May 2018, the parties and children were directed to attend on a family consultant for the purpose of preparing a s 11E report for the Court. On 4 September 2018 the parties and X were ordered to attend family therapy aimed at improving the relationship between the father and X. The order required the father to give the mother a list of names of family therapists who would provide the therapy and she would select one of those nominated therapists. However, on 29 January 2019, a notation to an order made on that day indicated that the father chose not to proceed with the family therapy to improve his relationship with X and it was noted that Y would remain in the then existing equal time arrangement until she commenced high school.
On 22 March 2019 a judge of the Federal Circuit Court made orders about the time the children would spend with the father; essentially that Y and X would spend time with the father as the parties agreed between them but in default of agreement about X’s time, she spend each alternate Sunday with the father from 10.00 am until 3.00 pm. The orders required that the father would obtain a referral from his general practitioner to a person who could help with strategies to re-establish his relationship with X. A family report involving the parties and the children was ordered.
The Family Report is dated 30 May 2019. The author of the report reflected on the poor relationship between X and her father, described by the author as X being unable to communicate with the father and completely rejecting him and said:
126. I would suggest that due to [X]’s current emotional state in relation to her relationships with her parents, that extensive repair work will need to take place before she feels comfortable and safe with her father. In my view, the father did not present as being understanding or attuned to [X]’s current needs or presentation, which will likely hinder their relationship further if the right guidance and support for both of them is not put into place. Without support, it is unlikely that the father will attain an appropriate level of understanding or the capacity to adequately meet [X]’s emotional needs in this area.
The matter came before the Federal Circuit Court on 12 July 2019 when final parenting orders were made (“the July 2019 orders”).[1]
[1] The father was not present at that hearing. A notation to the orders reflected that the father could apply pursuant to the Federal Circuit Court rules to set the orders aside. It seems that the father first sought to set those orders aside in a request made in an affidavit filed by him on 7 May 2020.
The July 2019 orders provided for the children to live with the mother and she have sole parental responsibility for them although she was required to advise the father and seek his written response before making any long term decision about the children’s welfare.
Order 3 concerned the time that Y would spend as follows:
3. That the child [Y] spend time with the father at all times as can be agreed and failing agreement as follows:
a.Until 20 January 2020:
i. In a shared care arrangement as agreed:
b. Commencing 20 January 2020:
i.From after school Friday to 4.00pm on Sunday and alternating each weekend thereafter.
Order 5 concerned the father’s time with X.
5. That the child [X] spend no time with the father, until such time that the following has commenced and where appropriate, been completed:
a.[X] engage in individual counselling. Both parents to support [X] and be available to the therapist as required;
b. The father has engaged in individual counselling with the therapist to assist him with building awareness and insight regarding his relationship with [X] from her perspective, and learn to engage with her in appropriate ways whereby [X] feels comfortable and supported in order to alleviate her fears;
c.Upon the view of the father’s counsellor that the father is ready to engage in therapeutic counselling with [X]and for such therapeutic counselling to commence after the father has:
i.Given the mother a report from his individual counselling outlining the he is ready to engage in therapeutic counselling with [X]; and
ii.The father has completed a Post-Separation Parenting Program Course.
On 7 May 2020 the father brought a contravention application alleging that the mother, without reasonable excuse, failed to engage a counsellor for X in accordance with the provisions of Order 5 on two occasions: 20 November 2019 and on 14 December 2019. The application further asserted that the mother contravened Order 3 of the July 2019 orders concerning Y’s time with the father on three occasions: 20 March 2020, 3 April 2020 and 17 April 2020.
On 26 June 2020 the father brought an application alleging that the mother was in contempt of the July 2019 orders in failing to engage X in individual counselling on 15 May 2020. The father also alleged that the mother was in contempt of the July 2019 orders by failing to facilitate time between the father and Y on 15 May 2020, and on two occasions on 29 May 2020.
On 1 July 2020 the father filed a further application alleging the mother to be in contempt of the July 2019 orders, again for failing to facilitate time between him and Y on 12 June 2020 and 26 June 2020.
On 6 July 2020 the father’s applications came before the judge of the Federal Circuit Court who made the July 2019 orders and who referred to the requirement in the order that the father and X attend counselling, his Honour observed that the envisaged counselling had not occurred and said:
HIS HONOUR: So it’s going to be, in effect, the same people who have been involved, because they know [Mr Herriot] and they know [X], and the whole purpose of the counselling is to reconcile and to bring them back together. And that was the point, was that the two of you, that is, you and [Mr Herriot] had to decide upon a counsellor who would be able to do that, knowing that this is the plan. Because the counsellor would be working with [X], and would be working with [Mr Herriot], and when it was that [Mr Herriot] was at that point that he was ready for therapeutic counselling with [X], then – and you would know that, that then you would be facilitating these aspects together. So I don’t know what either of you have actually done in relation to this.
(Transcript 6 July 2020, p.6 line 40 to p.7 line 3)
Thus before the father’s applications for contravention and contempt were listed for hearing, the judge directed the parties to attend family counselling for the purpose of the father and X engaging in family therapy. Further, the parties and children were directed to attend on a family consultant for the preparation of a written report. Order 3 of the July 2019 orders which provided for time as between Y and the father was suspended.[2]
[2] The father’s appeal against this order was dismissed and his application for Special Leave to Appeal to the High Court was refused
On 20 July 2020 Dr D conducted a Child Inclusive Conference between the parties and Y and reported to the court. Dr D said of his interview with Y:
• [Y] confirmed that she had not spend any overnight time with the father in 2020, due to the father working or his choices around this, “It just hasn’t happened”, and that her time with the father in 2020 has been consigned to a few hours or so on occasions that this happened.
• [Y] reported not overly missing spending time with her father (since April 2020) and did not desire to spend time with the father as things stand. [Y] reported that in April.
• [Y] reported that in April, an incident occurred where the father wanted the child to spend overnight with her in a hotel. [Y] reported that initially this was surprising but she was ok with it. However, when [Y] texted her mother to tell her what was going on, so she was aware of her whereabouts, the father reportedly accused [Y] of “spying on him…he got angry and was yelling about this”. [Y] went on to say that, this made her feel very uncomfortable and she requested to go back to the mothers, which the father eventually did. [Y] reported that after this incident, she expected the father to apologise for his accusations and reaction, but this did not occur, instead the father blamed her saying “he said that he did nothing wrong…that I scared him…he didn’t even apologise…” [Y] said that this incidence was reflective of past occasions where the father failed to apologise for behaviour that had upset her, “He never apologise…has never said sorry in my life…to so many things”. [Y] reported that after this she “now think that he will do this again if I see him and that just makes me feel uncomfortable”. [Y] was not optimistic that the father could change his ways regarding this behaviour saying, “he won’t change…he kept showing up to pick me up even after I told him that I didn’t want to see him…he still hasn’t apologised….”.
• [Y] reported that she recalled times in the past, without being specific, that the father made her feel like she could not return to her mother’s care or it was not her choice.
(As per the original) (Emphasis in the original)
The report as to Y concluded:
• [Y] proposed that she continue to live in her mother’s care and that she does not want to spend time with the father as things stand. However, [Y] was open-minded to spending time with the father “if it didn’t happen again…him making me feel scared and uncomfortable…then I’ll see him”. [Y] identified that the father “needs to change…he needs to respect my feelings and opinions.”
(Emphasis in the original)
The hearing of the father’s contravention and contempt applications was set down before the primary judge on 28 October 2020. At the time of that hearing, Y was not spending any time with the father in accordance with the July 2019 orders. The mother contended that there was a reasonable excuse for non-compliance with the 2019 orders being that Y did not wish to see her father.
As we have said, the primary judge dismissed each of the alleged contraventions and contempt.
The primary judge’s reasons
Before turning to consider the primary judge’s reasons for decision, it is necessary to refer to a matter, not raised in the grounds of appeal advanced by the father, but which is necessary for us to raise and consider (Warren v Coombes (1979) 142 CLR 531 at 552).
Under a heading “The Law” the primary judge said:
8. The contravention application invokes Part VII Div 13A of the Family Law Act 1975 (Cth) (the Act). As a result when dealing with contravention applications, particularly where the applicant seeks additional time by way of a parenting order, pursuant to section 60CA the best interests of the children is my paramount consideration.
(As per the original)
This is not a correct statement of the law. The best interests of the children is not the paramount consideration in applications of this kind.
In Keehan v Keehan (2019) 60 Fam LR 276 Kent J said apropos the nature of contravention applications:
31. … Div 13A reflects the legislative intention that Div 13A is directed only to enforcing compliance with operative parenting orders by those individuals bound by the subject orders. Neither punishment of the individual concerned nor deterrence (either specific to the individual or general deterrence) have any legitimate role in proceedings under Div 13A and specifically the imposition of sanctions under that Division.
32. This conclusion as to the legislative intention reflected in Div 13A is fortified when regard is had to the legislative history. Div 13A was created in 2000 by the Family Law Amendment Act 2000 (Cth) and was described as a new “parenting compliance regime” within Part VII of the Act. It superseded the enforcement powers contained in Part XIIIA of the Act concerning orders affecting children. By the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Div 13A was revised and Div 12A was introduced into Part VII of the Act. Importantly, that reflected the legislative intent that the provisions of Div 12A should apply to Contravention Applications in respect of orders affecting children. Clearly then, the legislature intended that the purpose of Div 13A was ensuring compliance with parenting orders, as is expressed in s 70NAA(1) in relation to the powers conferred by Div 13A.
In an earlier judgment, Caballes & Tallant (2014)FLC 93-596, Kent J said at [85(b)]:
As Division 12A applies there are important consequences. First, the Court is to give effect to the five principles in s 69ZN. Those principles require the Court:
(i) to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings; …
His Honour continued at [93] and said:
A contravention application under Division 13A with respect to orders affecting children brings into focus the interests of the respondent to the application, who may face sanction, as well as the interests of the child or children the subject of the orders, particularly when variation of the primary order under s 70NBA is in prospect.
There is a clear and important difference between conducting proceedings bearing in mind the interests of the children subject to the order said to have been contravened and having as a paramount consideration the best interests of the child, as his Honour said. Thus, had the primary judge approached his determination of the contravention and contempt applications through the prism of his misstated principle of law, it may have led to error, for, as is clear, contravention applications have as their focus enforcing compliance with orders.
However, a consideration of his Honour’s reasons satisfies us that he determined the contravention application with regard to the evidence adduced by the father and the provisions of s 70NAC of the Family Law Act 1975 (Cth) (“the Act”) which were set out in the preamble to his reasons. In short, while his Honour misstated the law, he did not apply that misstated law and thus no error results.
The primary judge considered each of the father’s applications in turn.
Contravention application filed 7 May 2020
Failure to engage X in individual counselling- 20 November 2019 and 14 December 2019
In support of these two alleged contraventions, the father relied on text messages exchanged with the mother. In relation to the alleged contravention on 20 November 2019, Annexure V to the father’s affidavit filed 7 May 2020 in support sets out the text exchange on 20 November 2019 which commenced with the father’s message to the mother:
“How is [X]’s individual counselling going? I haven’t heard anything from you about this…”
The mother replied:
“I’ll find out about the private counselling for [X] and will let you know the total cost to be paid by you...”
The father replied:
“You are the one responsible for [X] as per the Court Order. If you haven’t even taken her yet to counselling that’s a contravention of the Order and I will be lodging an application against you.”
In relation to the alleged contravention on 14 December 2019, again a text exchange contained in Annexure W to the father’s affidavit was said to demonstrate the alleged contravention. The message was sent at 6.12 am on 13 December 2019. The father said:
“Have you approached any counsellors at all for [X]’s Counselling? There are many free ones available for people that don’t have jobs and or money but drive the latest Land Rover SUV like you.
Just letting you know, that if you still haven’t then I’ll start a contravention order on you”
The father sent another email on 14 December 2019 at 12.18 am and said:
“so are you taking [X] to free counselling?”
The mother responded asking the father whether he was
“… taking one”.
The primary judge observed that these exchanges identified that the parties were in dispute about whether the counselling for X would be free and that “the parties were unable to reach agreement in relation to X’s counselling” (at [21]).
The primary judge dismissed both of the alleged contraventions finding that the terms of Order 5 of the July 2019 orders are uncertain as to who would be responsible for arranging the referral to individual counselling for X and concluded that it was not clear from the order that the mother alone bore the positive obligation of arranging the counselling (at [25]). His Honour further concluded that there was insufficient evidence adduced by the father to establish that the mother intentionally failed to comply with the order as alleged and in relation to the first alleged contravention said: “Indeed the evidence the father provides tends to support the view that the mother was willing to comply with the order” (at [19]).
His Honour concluded:
22. The evidence in my view supports the view that the mother was willing to comply with the order but that she required the father to comply with his obligations pursuant to the order and meet the costs in circumstances where she complains he was not meeting any costs relating to the children.
Finally his Honour observed that the father provided no evidence that on either of those two nominated dates that the mother in fact failed to comply with the order but that the dates appeared to have been “arbitrarily chosen by the father without reference to any appointments having been made or otherwise” (at [24]).
To repeat, his Honour dismissed the contravention application filed on 7 May 2020.
However, the application also contained three alleged contraventions of Order 3 of the July 2019 orders, being that the mother failed to make Y available to spend time with the father on 20 March 2020, 3 April 2020 and 17 April 2020. His Honour’s reasons do not refer to these separate, alleged contraventions.
His Honour’s failure to determine these three alleged contraventions together with an alleged contemptuous breach of the same order formed a significant part of the father’s appeal. During the appeal hearing counsel for the mother conceded that if his Honour did in fact fail to consider and determine the three alleged contraventions, it would amount to an error of law. However, he contended that in fact his Honour’s consideration of those three contraventions could be regarded, effectively, as being comprehended in his determination of the other alleged breaches of Order 3, in the sense that the breach alleged was the same but said to have occurred on different dates. We cannot accept that argument. Each alleged contravention is a separately pleaded breach, as it must be, because the applicant must show that the respondent had, on a specified date and without reasonable excuse, deliberately failed to comply with the order and each proved contravention attracts a penalty. Further the language of s70NAC itself speaks of “a contravention (the current contravention)”.
Thus, the primary judge in dismissing the father’s application filed on 7 May 2020, dismissed it without considering the three alleged contraventions in relation to Y’s time with the father and erred. We will return to this issue later in these reasons.
Contempt application filed 26 June 2020
In this application the father contends that the mother was in contempt of Order 5 of the July 2019 orders because on 15 May 2020 she refused to engage X in individual counselling.
The primary judge dismissed this alleged contempt because having found in relation to the contravention allegations that Order 5 of the July 2019 orders was insufficiently clear as to who bore the responsibility to arrange X’s counselling to conclude that it was the mother’s sole responsibility and, noting the standard of proof being the criminal standard, was not persuaded that the father had made out the alleged contempt (at [27]).
His Honour noted that the balance of the contempt application related to the father’s time with Y.
Before turning to deal with those alleged breaches, the primary judge set out some factual context which he regarded as important to the determination of whether the mother was in contempt of the July 2019 orders. His Honour referred to the circumstances of the child spending time with the father and he noted that Y had spent no overnight time with her father in 2020. His Honour continued:
33. Furthermore [Y] described that an incident occurred in April 2020 where the father wish to spend overnight time with her in a hotel. She said that she initially found it surprising but was ultimately okay with it and texted her mother to tell what was going on.
34. Upon the father realising that the child was texting her mother he became angry and accused the child of spying on him and thereafter was yelling at the child.
35. [Y] said that the incident upset her greatly and that she wanted an apology from her father which had not been forthcoming as at the date of her interview. She informed [Dr D] that she had told her father that she did not wish to see him.
36. [Y] subsequently informed the family consultant that she was open-minded to spending time with the father again “if it didn’t happen again …. him making me feel scared and uncomfortable…. Then I’ll see him.” She informed [Dr D] that the father “needs to change… He needs to respect my feelings and opinions.” The family consultant notes that [Y] presented as calm pleasant and intelligent and that she was content and happy with the current in parenting arrangements.
(As per the original)
We note that the report of Dr D was before the primary judge.
15 May 2020 at 4.40 am
The first contempt alleged in relation to time with Y was said to have occurred on 15 May 2020. It was contended by the father that the primary judge failed to consider this alleged breach and thus erred at law.
The alleged breach was described as follows in the contempt application filed 26 June 2020:
The respondant after seeing the applicant at her residence, drove away with the children in her car at high speed, and thereby, without reasonable excuse, refused to allow the applicant to spend time with the child [Y Herriot] in deliberate breach of the court order made on the 12 July 2019. …
(As per the original)
In support of this alleged breach, the father said that he advised the mother on13 June 2020 that he would attend on Friday and collect Y and then deposed:
The respondant emailed the applicant on 15.05.2020 at 8:16am of her intention to not follow the court orders and that quote (sic) ‘I have no choice but keeping [Y] …
(Father’s affidavit filed 26 June 2020, paragraph 8(b))(As per the Original)
The father then refers to Annexures C and E to his affidavit in which he extracts conversations from text messages and emails between him and the mother to support the alleged breach. The evidence in the affidavit continues and the father said that although he attended the mother’s residence neither she nor [Y] was there and some little time later he saw them drive down the street and, apparently on seeing the father at the house, the mother drove away.
Part of the text exchange relevant to this alleged breach appears in Annexure E and the whole of it (albeit in extracted form) appears in Annexure C. That document shows that the father text the mother on 13 May 2020 to inform her of his intention to collect [Y]. At 7.45 am on 15 May 2020, the mother responded: “I’m taking girls to Robina Town Centre after their schoolwork. Can you please pick [Y] up at 5pm at Robina Town Centre please?”
The father responded “[w]here?” and the mother replied “Robina town centre. Text me when you get there. Any car park. We are going to the Apple shop.” The father said: “[Y] needs a bag with clothes etc.” The mother responded: “Where does she stay?” The father: “With me of course. The mother: “Where exact location” and a few seconds later said: “You know my address.” The father: “That’s none of your business and stop asking.” The mother replied: “Yes it is. I have the right to know where my girl stays overnight otherwise today’s pick up is outside of the window…” (Father’s affidavit filed 26 June 2020, Annexure C).
The exchanges then devolve to a discussion about whether the court would support the mother’s request to know where Y spends the night.
The father at 7.54 am then sent the following message to the mother:
I don’t agree for pickup at Robina. I’ll be at your house at 4.30pm today to pick up [Y] as per the court order. She’ll need her bag for two nights stay. I have a contravention order ready and waiting if you persist in this behaviour.
In Annexure E, one particular email exchange is set out, between the mother and the father at 8.16 am in which the mother says:
I need to know where my daughter is going to stay overnights as a mother.
You have moved twice since the court order but refuse to provide me your residential address or at least the address [Y] stays overnights. I have requested this matter multiple occasions but you refused each time.
Therefore I have no choice but keeping [Y] until we resolve this issue. Furthermore, [Y] is still upset about you shouted on her face last time visit ad is still scared…
(Father’s affidavit filed 26 June 2020, Annexure E) (As per the original)
It was asserted by the father that the primary judge failed to consider and determine this alleged breach. True it is that the reasons do not identify the alleged breach by date, however, at [39] of his reasons, the primary judge refers to Annexure E to the father’s affidavit in support of the contempt application and in particular the mother’s response to him sent at 8.16 am wanting to know where Y would be spending the nights.
His Honour continued:
40. It is quite clear from the email exchange that the mother was requesting reasonable information relating to where the child would be staying. That request was made in circumstances where the father had no suitable accommodation for overnight time and had previously suggested that he and the child spend overnight time in a hotel.
41. The action the mother took on this occasion was to request important and relevant information that related to the safety of the child and in my view was reasonably entitled to request that information.
42. The time between the child and her father did not occur because the father refused to provide that reasonable relevant information. In those circumstances I am not satisfied beyond reasonable doubt that the mother took a deliberate step which breached the order.
(As per the original)
In our view, the primary judge did indeed consider and dismiss the alleged breach said to have occurred on 15 June 2020 as his reasons extracted demonstrate. That he did not identify the breach by date, in our view, does not establish that the complaint was undetermined.
29 May 2020 at 3.15 pm
The father alleged that he arrived at the mother’s house to collect Y and neither Y nor the mother was there. The allegation reads: “No excuse was given, reasonable or otherwise. The respondant (sic) emailed her refusal to the applicant beforehand, to follow the court order in a deliberate and flagrant breach of the court order …” (contempt application filed 26 June 2020).
The father’s evidence in support of this charge comprised email exchanges with the mother (father’s affidavit filed 26 June 2020, Annexure E) which commence on 27 May 2020 when the mother sent a message to the father saying: “Y still wish to see you sometimes in the future but refuse to stay over at your place” (As per the original).
On 28 May 2020 the father responded informing the mother that he would be at her house at 3.15 pm and Y should have her bag packed. He concluded the exchange with an exhortation that she comply with the orders and a threat of further proceedings if she does not.
The primary judge noted that there was no evidence that the father was in fact outside the mother’s house at 3.15 pm to collect Y and referred to the father’s text to the mother at 4.30 pm in which he told her he was outside her house. Clearly his Honour concluded that this alleged breach was not established.
29 May 2020 at 4.00 pm
The primary judge at [44] referred to paragraphs 9 and 10 of the father’s affidavit filed 26 June 2020 being the evidence in support of this alleged breach of the order that the mother dropped Y at her house and drove away, leaving Y in the house and as a result Y did not spend time with the father.
The primary judge found at [45] that the mother did not flagrantly disregard the court orders but, he said, was “caught in a bind between the court orders and the impact the father’s behaviour is having on the child”. His Honour concluded:
46. The information contained within the family consultant’s memorandum dated 20 July 2020 satisfies me that the mother cannot comply with the court orders until such time as the father addresses his own behaviours and the impact they are having on the child. In short I am not satisfied beyond reasonable doubt that the mother is flagrantly disregarding the court orders.
His Honour dismissed the application for contempt filed on 26 June 2020.
Contempt application filed 1 July 2020
The father alleged that the mother had breached the July 2019 orders on three occasions; 12 June 2020, 26 June 2020 and 4 June 2020. The last alleged act said to constitute contempt related to the mother seeking a Protection Order from her local court. This alleged breach was apparently not pressed by the father.
The first alleged contempt was said to have occurred on 12 June 2020 when Y was not available to spend time with the father. The evidence to support this contempt was said to be found in Annexure C to his affidavit of 1 July 2020 which are copies of text messages the father sent to the mother but not her replies, and secondly in Annexure B to that affidavit which contains an email exchange between the parties, commencing on 9 June 2020 when the father advised the mother that he would be at her house on Friday to collect Y. The mother replied:
As you know (I previously advised you many occasions) [Y] doesn’t want to go with you. You should wait till this coming court hearing scheduled in 2 wks.
We have to go through the exact same procedures like last time. You show up anyway even though I advised you not to. You and/or I call the police. The police interview everyone including [Y]. The police told you to go home. You that all of this will cause a big trauma for the girls.
(father’s affidavit filed 1 July 2020, Annexure B) (As per the original)
The father responded:
So you are aware of the order and [willingly] will be in contempt of court
I will proceed with a contempt application then
(father’s affidavit filed 1 July 2020, Annexure B) (As per the original)
On 12 June a further text exchange between the parties occurred with the father repeating that the mother was “intending to flagrantly disregard the court orders”. The mother replied that Y was “NOT coming with you”.
The second alleged contempt was said to have occurred on 26 June 2020 and, again, related to the father’s time with Y.
Again, the father relied on text exchanges between him and the mother, commencing with his email to her on 22 June 2020 telling her that he would be at her house on Friday to collect Y. The mother responded, repeating that Y did not want to go with him. The father responded reiterating his position that the mother would be in contempt of the court orders.
The primary judge said in respect of both alleged breaches of the order:
48. Whilst I accept that technically the orders have been breached, I am not satisfied beyond reasonable doubt that the mother is intending to breach the orders.
Thus, the primary judge dismissed the contempt application filed on 1 July 2020.
The appeal
Before considering the challenges raised on appeal, we observe that after the appeal from the primary judge’s orders was filed, on 9 February 2021 the father applied for injunctions concerning the children’s schooling. When the application came before the Court, the appointment of an Independent Children's Lawyer and a Child Inclusive Memorandum report was ordered. The matter was set down for interim hearing on 26 August 2021. On 30 March 2021 the father amended his parenting application to seek orders that set aside the July 2019 orders, stayed the primary judge’s orders in relation to the contravention/contempt applications and sought parenting orders that the children live with him, he have sole parental responsibility and that they spend only supervised time with the mother after an interregnum of two months during which they would spend no time with her.
When asked what utility there was in pursuing the appeal from the primary judge’s dismissal of his applications, the father said that if he was successful on the appeal and the applications were remitted and re-determined against the mother, those findings would weigh heavily in his favour in persuading the Court to change the children’s living circumstances as outlined in his applications.
The father pursued the mother for alleged breaches of the parenting orders casting them as contraventions (s 70NEA) and as contempt (s 112AP). As we have said, the intended purpose of s 70NEA is to secure compliance with parenting orders, whereas an application brought pursuant to s 112AP concerns breaches which do not involve a contravention, but which is designed to punish a breach of an order which involves a “flagrant challenge to the authority of the court” (s 112AP(1)(b)). That conduct was described in Ibbotson and Wincen (1994) FLC 92-496 at 81,162:
…It is clear that paragraph (b) of that sub-section contemplates that in some circumstances the contravention of an order will constitute a contempt of Court. It defines that circumstance as being where the contravention involves a “flagrant challenge to the authority of the Court”. Repeated breaches are not a prerequisite, although that may more readily attract this provision. The use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question …
It is necessary to establish the charge beyond reasonable doubt (Tate and Tate (2002) FLC 93-107).
Thus the father’s persistence in pressing the appeal in the hope that eventually findings would be made against the mother which would bolster his application that the children live with him is entirely inconsistent with the aims and effects of these two sections and could be reasonably seen as an abuse of the Court’s process. There is, in our view, no utility in pressing the appeal. However we propose nonetheless to consider the asserted grounds of appeal.
Before doing that though, it is necessary to make one further observation. Given s 112AP only applies to a contempt of court that does not constitute a contravention of an order, it would have been open to the primary judge to dismiss for that reason, those applications alleging contempt which were in that category, namely, and in particular, the allegation in the contempt application filed on 26 June 2020 that the mother was in contempt of the July 2019 orders in failing to engage X in individual counselling on 15 May 2020.
However, this issue was not raised before the primary judge, and his Honour dealt with the contempt applications and dismissed them on their merits. Thus, we will address the grounds of appeal relating to those dismissals.
Turning then to the grounds of appeal, seven grounds are advanced in challenge to the primary judge’s orders. Part of Ground 1 contends that the primary judge failed to afford the father procedural fairness; Ground 2 contends that he was denied natural justice and Ground 5 contends that the primary judge was “plainly biased”. During the appeal hearing the father withdrew Ground 2.
Assertions of judicial bias, that a trial or proceeding was procedurally unfair or that a litigant was denied natural justice, are very serious and, if correct, cut to the heart of the validity and acceptability of the outcome and for that reason such contentions must be considered first because if established, there can be no outcome other than a re-hearing (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117]).
The father’s Summary of Argument filed on 22 April 2021 purports to identify the paragraphs in it that support these challenges, but none of the paragraphs addresses those serious challenges to the integrity of the proceedings. During the course of argument on the appeal, when taken to these grounds, the father argued that the primary judge made a number of errors of law and these errors establish that the primary judge failed to afford the father procedural fairness and established bias in the primary judge. The argument is spurious and is rejected. So much of Ground 1 as asserts denial of procedural fairness and Ground 5 are dismissed.
The remaining grounds raise separate appellate challenges. However each is expressed in such wide and unparticularised terms as make it difficult to identify the point actually being agitated.
Regrettably, little light is thrown on the remaining grounds by the Summary of Argument which is a pastiche of assertions and which does not address or elucidate the individual grounds of appeal. Rather, we are left to rummage around in the Summary of Argument to see what arguments are advanced in relation to the primary judge’s orders.
Many of the points made in the father’s submissions misstate the primary judge’s reasons; for example at paragraph 15 of the Summary of Argument, the father asserts that the primary judge erred in “making a finding that the mother had a reasonable excuse” because “the father realising that the child was texting her mother he became angry and accused the child of spying on him”. The primary judge made no such finding but set out a comment made by Y to Dr D who had interviewed her for the purposes of a Child Inclusive Conference as part of the factual background to the particular dispute. It is clear from his Honour’s reasons that the primary judge did not take the comment by Y into account in determining whether in relation to a particular alleged breach, the mother had a reasonable excuse.
By way of further example, the father asserts that the primary judge failed to “consider, weigh and assess the evidence” in relation to family violence being the father’s allegation that the mother committed acts of family violence “before, during and after the alleged breaches” and says that her acts of family violence would be considered a significant form of emotional abuse (father’s Summary of Argument paragraph 22). The father does not address how this assertion by him had any role to play in a determination of whether the mother intentionally failed to comply with the July 2019 orders or breached them in flagrant disregard for the court’s authority and this asserted failure will not be further considered.
However a number of issues were raised by the father in his Summary of Argument which we will address.
Overlooked breaches
Significant to the father’s challenges to the orders was the failure of the primary judge to consider four alleged breaches of the orders, three alleged contraventions in relation to his time with Y and one alleged breach amounting to contempt, again relating to his time with Y. As we have said, we do not accept that the primary judge failed to consider the alleged breach of Order 3 said to have occurred on 15 May 2020, however, it is plain that he failed to consider the three alleged contraventions of the order and thus fell into error.
The father contended that had the primary judge considered those additional alleged breaches, he would have come to the conclusion that the mother intentionally failed to comply with the orders without reasonable excuse. The father argued that considering these additional breaches, the primary judge “might have been able to consider the following relevant factor in that the mother gave clear indication that she had formed a view that she was not going to comply with orders 3.b.i regarding Y’s time with father (sic) from 20 March 2020” (father’s Summary of Argument, paragraph 10).
The argument that the more allegations considered, the more likely the primary judge to find them established flies in the face of logic. Each alleged breach must be considered on its own facts and, depending on whether the breach is said to amount to a contravention of the orders or to contempt of court, proved to the requisite standard, either on the balance of probabilities or beyond reasonable doubt. That seven or even seventy allegations are made cannot operate to bolster proof of one allegation; each allegation is merely that, an allegation until it has been established.
Reasonable excuse
Next, the father argues that the primary judge erred in finding that where the mother had breached the order, she had a reasonable excuse for doing so and thus no contravention was established. The thrust of the father’s submissions in this regard appear to be an assertion that another, different conclusion should have been drawn from the evidence in the case.
Whether or not the evidence establishes that the mother had a reasonable excuse for not complying with the July 2019 orders is a finding of fact and what facts are found based on the evidence in a case is exquisitely a matter for the primary judge and an appeal court will not intervene unless it can be established that the finding was not open to the judge on the evidence. Here, the finding was clearly open on the evidence and the primary judge made no error in that finding.
Terms of Order 5 of the July 2019 orders
The father contends that the primary judge was wrong in concluding that the terms of Order 5 were uncertain as to who bore the responsibility for arranging the counselling for X. The father argued that in circumstances in which he had no time with X, it was then the mother’s clear duty to arrange the counselling as only she could carry out that task. We do not agree. His Honour’s view that the terms of the order were unclear was open to him and we see no error in his conclusion.
The appeal will thus succeed in part. The father sought neither an order for costs nor a costs certificate in the event that the appeal succeeded. Counsel for the mother sought a certificate in the event that the appeal succeeded because of an error of law. Given the very limited basis on which the appeal will be allowed, we do not propose to make an order for a certificate.
Disposition of the appeal
Turning then to the unconsidered breaches. The question of whether, in the event that the appeal succeeded, the matter should be remitted for further hearing was discussed with the father during the appeal, and, as we have said, the father believed that if another judge heard and determined the alleged breaches in his favour it would bode well for his application that the children live with him. However, he offered no strong view either way as to whether the applications were remitted for re-hearing or whether the Full Court re-exercised the primary judge’s discretion. In this event, we have decided to re-exercise the primary judge’s discretion and consider the three undetermined alleged breaches based on the evidence before the primary judge. We are conscious that where an appeal court decides to re-exercise the discretion it is necessary to give the parties the opportunity to adduce evidence of the circumstances as they exist at the time of the re-exercise (Allesch vMaunz (2000) 203 CLR 172).
Here, however, the father alleged three discrete breaches of the order relating to his time with Y. The alleged breaches were said to have occurred on a particular day at a particular time, each breach being an individual case for determination. When the question of updated evidence was raised with the father he indicated that he would wish to adduce further evidence of more alleged breaches of the orders by the mother committed since the hearing by the primary judge. Evidence to that effect is not relevant to proof of the three unconsidered alleged contraventions. In those circumstances we see no difficulty in this Court re-exercising the primary judge’s discretion based on the evidence on which the father relied as establishing them without the need for any updating evidence from either party.
Re-determination of the contravention application filed 7 May 2020
Before moving to consider the three, alleged contraventions of Order 3 made on 12 July 2019, it is important to differentiate between non-compliance with an order and non-compliance which amounts to a contravention of the order. Section 70NAC relevantly provides:
Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order — he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order…
Importantly too, s 70NAE(1) deals with circumstances where an order has been contravened, but the person said to be in breach of the order has a reasonable excuse for the contravention.
Contravention of Order 3 on 20 March 2020 at 3.57 pm
The father alleged that the mother had, without reasonable excuse refused to allow him to spend time with the child Y.
The evidence to support this alleged contravention is found in the father’s affidavit filed on
7 May 2020 and commences at paragraph 21. The father alleges that having told the mother by email on 18 March 2020 that he would attend on 20 March 2020 to collect Y, when he arrived the child was not made available to go with him and the mother called the police.
In further support of the alleged contravention, the father relies on two documents annexed to his affidavit filed on 7 May 2020, Annexures Y and X. Annexure Y comprises messages between the father and the mother. The relevant exchange commences on 18 March 2020 at 11.12 am in which the father says to the mother:
[Y] said that you told her that she can’t see me because I’m a nurse? Unless you are a federal court order saying that is wrong….
(Father’s affidavit filed 7 May 2020, Annexure Y)
The mother replied:
Everyone is advised to stay home isolated from the crowd.
I don’t take kids to any public area including cinema, shopping centres, shops, cafe and etc at the moment.
I didn’t mean that [Y] cannot see you because you are a nurse and I mean that you never notify me where you are taking [Y] to.
You have no permanent residence to take her or anything. I don’t even know where you live. So I cannot agree that you take [Y] out until you give me all the information.
Furthermore you need to contact me to organise to see [Y] Not directly to [Y] as you have been doing this since the court order and you know it is wrong.
Please seek the advice if you have any queries.
From now on, I am asking you to contact me and advise me where you are going with [Y] in advance.
(Father’s affidavit filed 7 May 2020, Annexure Y) (As per the original)
The father reiterated that he would be picking up Y at the mother’s residence on 20 March 2020 at 3.30 pm and said that because of “domestic violence” he did not have to tell the mother where he lived.
The mother responded:
What domestic violence??? I am not letting you have her in public. full stop.
(Father’s affidavit filed 7 May 2020, Annexure Y) (As per the original)
A little later the mother added that if the father came to her house having been told not to come, she would call the police.
At 10.06 pm on 18 March 2020, the father wrote to the mother:
The Court specifically states that I go to your residence at 4.00pm Friday to pick up [Y], so if you do call the police, I will be recording everything, documenting, and sending off a third Contravention application. I did a second one last week because your not taking [X] to counselling.
(Father’s affidavit filed 7 May 2020, Annexure Y) (As per the original)
Annexure X to the father’s affidavit filed 7 May 2020 is a transcript of the father’s recording of the interaction that occurred between him, the mother and her new partner, Mr Howes, when he attended on 20 March 2020 at 3.57 pm to collect Y. It is unnecessary to recount much of the conversation, however, the following conversation between the father and Mr Howes is perhaps illuminating of the circumstances and it occurred after Mr Howes told the father that Y was inside the house but was not coming out. The father asked Mr Howes to bring Y out of the house. Mr Howes refused and said that if the father was taking her out to his residence then that was fine. The father replied that he was going straight home but when Mr Howes asked him for his address, the father said it was not his business.
Clearly Y did not go out with the father on that day and the mother was in breach of the order. However the evidence on which the father relies makes it plain that the mother had two significant, and in our view entirely reasonable concerns about the father spending time with Y. First, given the Covid-19 pandemic, she was concerned that Y not be potentially exposed by being in a public space. Secondly, and in our opinion, equally reasonably, the mother wished to know where Y would be spending the night. On both counts the father refused first to acknowledge her concerns about taking Y out in public until he was well into the confrontation with Mr Howes on the mother’s doorstep on 20 March 2020 when he said he was taking her to his house, but then refused and, it is clear, continued to refuse to inform the mother where Y would be spending the night.
Both of these matters speak strongly to the mother’s concern for Y’s health and safety (s 70NAE(5)) and we are of the view that the mother had a reasonable excuse for not sending Y with the father on that day.
Contravention of Order 3 on 3 April 2020 4.00 pm
The father contends that on this date at this time, the mother without reasonable excuse refused to allow Y to spend time with the father.
The evidence in support of this alleged breach of the orders is found in the father’s affidavit filed on 7 May 2020 at paragraph 22. He said:
… The Applicant was able to pick up [Y] as per the Court Order on the 03.04.2020. [Y] relayed to the Applicant that she was scared of what the Respondant and her partner might do if she stayed for the weekend. [Y] said her mother had told her not to go with her father and that she would get in trouble from her mother and partner. Threatening a child is a contravention. The usual punishment [Y] said is being locked in her room with no food. The Applicant felt it best because of the Respondant's threat to [Y], to return her and start a new Initiating Applcation (Family Law) and document everything that had happened.
(As per the original)
No breach of the order occurred and no contravention is made out. Even if the father’s account of his conversation with Y is correct it does not amount to a contravention of Order 3 of the July 2019 orders.
Contravention of Order 3 on 17 April 2020 3.36 pm
The father alleges that on this day and at this time, the mother refused to allow Y to spend time with the father.
The evidence in support of this alleged contravention is found in paragraph 23 of the father’s affidavit filed 7 May 2020 in which he says:
… The Applicant attended the Respondent's residence to pick up [Y] …, our younger daughter, aged 12 as per the current Court Order on the 20.03.2020. The Applicant texted the Respondant that he was here, there was no answer. No-one answered the front door after the applicant knocked. The Respondant then threatened to call the police via text. This is domestic violence and abusive, threatening behaviour. No valid excuse was given as to why [Y] was not in attendance, and the Applicant spent no time with [Y]. The Applicant recorded his full attendance at the Respondant's residence as evidence.
(As per the original)
The father also relied on messages exchanged with the mother on that day (Annexure Z to the father’s affidavit filed 7 May 2020). It should be noted that Annexure Z is a summary of messages sent between the parties and clearly does not include the whole of the conversations between them and for that reason we approach the evidence with considerable caution. What is apparent though is that on 3 April 2020 messages between the father and mother speak about the incident reported by Y to Dr D when the father intended to take Y to a hotel to spend overnight time together. At 7.25 pm the mother told the father “Just letting you know that she doesn’t wish to see you for a while”.
The extracted messages reveal that 17 April 2020 commenced with the father asking the mother at what time should he collect Y that afternoon followed shortly afterwards by a message accusing the mother of telling the child that she would catch COVID-19. The mother replied:
It's not me again as usual you accuse me for everything. Living like that for all your life but the things are not getting easier isn't it? Why don't you have a different attitude towards others? She doesn't wish to see you because of your own behaviour from last meeting. Not answering your silly accusations FYI.
(Annexure Z to the father’s affidavit filed 7 May 2020) (As per the original)
The father responded telling the mother that he would be at her house at 3.30 pm. Y did not spend time with the father on that day.
We are conscious of Y’s comment to Dr D which is part of a wider note by Dr D of his conversation with Y and set out at [17] of these reasons, but part of it bears repeating:
[Y] reported that after this she “now think that he will do this again if I see him and that just makes me feel uncomfortable”. [Y] was not optimistic that the father could change his ways regarding this behaviour saying, “he won’t change…he kept showing up to pick me up even after I told him that I didn’t want to see him…he still hasn’t apologised….”.
(As per the original)
Coupled with the mother’s response to the father set out above at [113], it is plain that Y did not wish to see her father because of his conduct towards her and she and the mother had told him as much. We are of the view that while the order was breached, the mother had a reasonable excuse for doing so.
Thus the alleged contraventions set out in paragraphs 11, 13 and 15 of the contravention application filed on 7 May 2020 and said to have occurred on 20 March 2020 at 3.57 pm; 3 April 2020 at 4.00 pm and 17 April 2020 at 3.36 pm are not established and the application should still be dismissed.
Having reached the same result in relation to the application as did the primary judge, the orders made by his Honour should stand and the appeal will be dismissed.
Costs
Counsel for the mother sought an order for costs in the event that the appeal was dismissed. We do not propose to make an order for costs, the primary judge failed to consider part of the matter before him and it was appropriate for that error to be pursued on appeal.
HOGAN J:
I respectfully disagree with the conclusions reached by Strickland and Ainslie-Wallace JJ and, save in respect of costs, the orders that their honours propose.
I would allow the appeal in so far as it relates to the allegations contained in the Application – Contravention filed 7 May 2020 that the mother contravened Order 3 made 12 July 2019 (“the July 2019 orders”) on 20 March 2020, 3 April 2020 and 17 April 2020 and the allegations contained in the Application – Contempt filed 26 June 2020 that, at 4.40 am (sic) on 15 May 2020 and at 3.15 pm on 29 May 2020, the mother contravened Order 5 of the July 2019 orders in a manner that involved a flagrant challenge to the authority of the Court, set aside the orders made by the primary judge to reflect this conclusion and remit these allegations for rehearing.
I would do so for the reasons which follow.
By Notice of Appeal filed on 14 January 2021, the father appeals orders made by a judge of the Federal Circuit Court of Australia on 21 December 2020 which dismissed the following applications:
(a)the Application – Contravention filed 7 May 2020; and
(b)the Application – Contempt filed 26 June 2020; and
(c)the Application – Contempt filed 1 July 2020.
All of the applications alleged that, in the manner particularised in each of them, the mother had either contravened specified aspects of the July 2019 orders or had contravened specified aspects of the same orders in a manner which involved a flagrant challenge to the authority of the Court.
The July 2019 orders prescribed matters relating to the parties’ two children: 16 year old X, who was born on 8 August 2005, and 14 year old Y, who was born on 7 July 2007.
Before turning to consider the matters raised by the self-represented father in his Grounds of Appeal, it necessary to consider a matter not included in the same.[3]
[3] Warren v Coombes (1979) 142 CLR 531 at 552.
Matter not raised in the grounds of appeal
Immediately under the heading “The Law” in the reasons published on 21 December 2020, the primary judge asserted as follows:
8. The contravention application invokes Part VII Div 13A of the Family Law Act 1975 (Cth) (the Act). As a result when dealing with contravention applications, particularly where the applicant seeks additional time by way of a parenting order, pursuant to section 60CA the best interests of the children is my paramount consideration.
(As per the original)
I do not regard this paragraph as correctly stating the law to be applied in the determination of applications for contravention and contempt (where the latter involves an allegation that the contempt constitutes a contravention of an order under the Act and involves a flagrant challenge to the authority of the court). Rather, it is only once a court has exercised the discretion accorded to it by s 70NBA(1) of the Act to make an order varying the order the subject of the contravention proceedings that it is required to regard the primary interests of the children as the paramount consideration.[4] Further, whilst the court is required, in exercising powers and making other decisions about the conduct of the proceedings, to give effect to principles which include that it is to consider the needs of the children and the impact the conduct of the proceedings may have on them in determining the conduct of the proceedings,[5] that is very different to the suggestion that the court’s paramount consideration, when considering applications for contravention, is the best interests of the children.
[4] Section 70NBA(2) of the Act.
[5] Sections 69ZN(1) and (3) of the Act.
Consequently, had the primary judge approached his determination of the contravention applications through the prism of his misstated principle of law, he would have erred. However, a consideration of his Honour’s reasons has ultimately satisfied me that he determined the various contravention applications having regard to s 70NAC of the Act, set out at [12] of the reasons.
The Grounds of Appeal
During the course of his submissions, the father abandoned Ground 2 of the grounds set out in the Notice of Appeal. He maintained the balance. The oral submissions he made in support of the same included that the Court would be persuaded that the primary judge erred in the manner particularised in the Notice of Appeal and submitted in the father’s Summary of Argument filed on 22 April 2021 and, consequently, would also be persuaded that his Honour was “plainly biased”, as contended for in Ground 5, and that his Honour had not afforded him natural justice, as contended for in part of Ground 1.
I reject the submission that any errors of law established by the father establish that his Honour failed to afford the father natural justice or was “plainly biased.”
Whilst the father asserted that the primary judge failed to “consider, weigh and assess the evidence” in relation to family violence – namely, his allegations that the mother committed acts of family violence “before, during and after” the alleged breaches and that her acts of family violence would be considered a significant form of emotional abuse[6] – such evidence was not relevant to the primary judge’s determination of whether the mother intentionally failed to comply with the July 2019 orders or breached them in flagrant disregard for the Court’s authority.
[6] Father’ Summary of Argument filed 22 April 2021, paragraph 22.
In explaining the conclusions about the father’s Grounds of Appeal, it is useful to consider the various applications before the primary judge insofar as each related to each child individually. This is more so because the alleged contraventions and the alleged contempts related to different aspects of the July 2019 orders.
Consideration of the appeal in respect of the primary judge’s dismissal of the applications involving the mother’s asserted conduct about X
The contraventions and the contempt alleged in relation to the mother’s asserted conduct about X related to Order 5 of the July 2019 orders, which is in the following terms:
5.That the child [X] spend no time with the father, until such time that the following has commenced and where appropriate, been completed:
a.[X] engage in individual counselling. Both parents to support [X] and be available to the therapist as required;
b.The father has engaged in individual counselling with the therapist to assist him with building awareness and insight regarding his relationship with [X] from her perspective, and learn to engage with her in appropriate ways whereby [X] feels comfortable and supported in order to alleviate her fears;
c.Upon the view of the father’s counsellor that the father is ready to engage in therapeutic counselling with [X] and for such therapeutic counselling to commence after the father has:
i.Given the mother a report from his individual counselling outlining the he is ready to engage in therapeutic counselling with [X]; and
ii.The father has completed a Post-Separation Parenting Program Course.
The father alleged that, in contravention of Order 5 of the July 2019 orders, the mother had failed to engage X in individual counselling at the following times:
(a)on 20 November 2019 at 7.22 pm (Application – Contravention filed 7 May 2020); and
(b)on 14 December 2019 at 8.31 am (Application – Contravention filed 7 May 2020).
The father contended that the primary judge was wrong in concluding that the terms of Order 5 were uncertain as to who bore the responsibility for arranging the counselling for X; the father argued that, in circumstances where he had no time with X, the mother had the clear obligation to arrange the counselling, as only she could carry out that task.
Whatever might have been the practical consequence of the parenting arrangements in place for X’s ordered engagement in counselling, Order 5 of the July 2019 orders does not specify which parent is to be responsible for arranging her individual counselling. Given this, I do not think his Honour erred in concluding that the order was uncertain about who was to arrange the same (at [16]).
I am not persuaded that his Honour’s reasons for the decision to dismiss these allegations of contravention are inadequate or insufficient to enable the parties to understand the reasoning underpinning his conclusion that the father had not established that the mother had contravened the order in the manner alleged (at [16]–[25]). It was clearly open to his Honour to assess the evidence in the manner that he did; I am not persuaded that his decision to dismiss these allegations of contravention was “plainly wrong” or that the primary judge erred in the manner asserted by the father in the Grounds of Appeal, as complemented by his written and oral submissions.
The father also alleged in the Application – Contempt filed 26 June 2020 that, in contravention of Order 5 of the July 2019 orders, the mother deliberately failed to engage X in individual counselling at 7.57 am on 15 May 2020 and that her actions in this respect involved a flagrant challenge to the authority of the Court.
His Honour’s reasons for his conclusion that the father had not proved this allegation to the requisite standard[7] may be found at [27] of the reasons. Given his Honour’s earlier finding – particularly that at [16] of the reasons – nothing further was required to ensure that the parties were able to discern why his Honour dismissed this allegation. I am not persuaded that his decision to dismiss this allegation of contempt was “plainly wrong” or that the primary judge erred in the manner asserted by the father in the Grounds of Appeal, as complemented by his written and oral submissions.
Consideration of the appeal in respect of the primary judge’s dismissal of the applications involving the mother’s asserted conduct about Y
[7] Noted at [10].
The contraventions and the contempts alleged in relation to the mother’s asserted conduct about Y related to Order 3 of the July 2019 orders, which is in the following terms:
3. That the child [Y] spend time with the father at all times as can be agreed and failing agreement as follows:
a. Until 20 January 2020:
i In a shared care arrangement as agreed:
b. Commencing 20 January 2020:
i. From after school Friday to 4.00 pm on Sunday and alternating each weekend thereafter.
The father alleged that, in contravention of Order 3 of the July 2019 orders, the mother had refused to allow Y to spend time with him on the following occasions:
(a)on 20 March 2020 at 3.57 pm (Application – Contravention filed 7 May 2020); and
(b)on 3 April 2020 at 4.00 pm (Application – Contravention filed 7 May 2020); and
(c)on 17 April 2020 at 3.36 pm (Application – Contravention filed 7 May 2020).
None of these allegations is the subject of any discussion at all in the primary judge’s reasons. Given this, there is simply no way of knowing why his Honour determined to dismiss them – which was consequent on his order that the Application – Contravention filed 7 May 2020 be dismissed – and the parties have been denied the ability to follow his Honour’s reasoning so as to be satisfied that justice has been done.[8]
[8] Bennett and Bennett (1991) FLC 92-191.
The contention by counsel for the mother to the effect that his Honour’s consideration of these three allegations of contravention can effectively be regarded as being comprehended in his determination of the other alleged breaches of Order 3 – in the sense that the breaches alleged were the same in nature but said to have occurred on different dates – cannot be accepted. Each asserted contravention must be particularised and established; each must be individually considered by the Court; each must be the subject of findings.
His Honour’s failure to deal with these allegations of contravention in his reasons clearly demonstrates an inadequacy in the same insofar as these allegations are concerned and constitutes an error of law.[9] The father’s challenge in relation to the dismissal of these three allegations of contravention must succeed.
[9] See, for example, Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 per Allsop P (with whom McColl JA agreed)
at [2]; and Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA at [58] – [59].
The father also alleged that, in contravention of Order 3 of the July 2019 orders and in a manner which involved a flagrant challenged to the authority of the Court, the mother had refused to allow Y to spend time with him on the following occasions:
(a)on 15 May 2020 at 4.40 am (sic) (Application – Contempt filed 26 June 2020); and
(b)on 29 May 2020 at 3.15 pm (Application – Contempt filed 26 June 2020); and
(c)on 29 May 2020 at 4.00 pm (Application – Contempt filed 26 June 2020); and
(d)on 12 June 2020 at 5.30 pm (Application – Contempt filed 1 July 2020); and
(e)on 26 June 2020 at 3:45 pm (Application – Contempt filed 1 July 2020).
The father contended that the primary judge failed to consider the conduct alleged to have occurred on 15 May 2020 and, consequently, erred in making the order which dismissed this allegation.
I am persuaded that this is the case for the following reasons.
There is no mention in his Honour’s reasons of “15 May 2020” insofar as that date is relevant to the allegations of contempt associated with the mother’s asserted failure to make Y available to spend time with her father. Rather, the reasons in relation to the contempt allegations involving the mother’s asserted conduct relating to Y not spending time with her father mention only 29 May 2020 (twice) (at [37] and [43]); 12 June 2020 (at [47]); and 26 June 2020 (at [47]).
Further, reference to [37]–[42] of his Honour’s reasons has persuaded me that his Honour appears to have conflated the evidence relied on for the contempts alleged to have occurred at 4.40 am (sic) on 15 May 2020 and at 3.15 pm on 29 May 2020. For example:
(a)whilst the discussion at [37] specifically refers to the contempt alleged to have occurred at 3.15 pm on 29 May 2020, the subsequent reference at [38] to the email in Annexure E – in which the father said, at 4.30 pm, that he was at the mother’s house to pick Y up – is a reference to an email that was sent on 15 May 2020 and not on 29 May 2020; and
(b)whilst the email referred to at [39] relates to 15 May 2020, the failure to note this specifically and that his Honour discussed it after apparently embarking on a consideration of the contempt alleged to have occurred at 3.15 pm on 29 May 2020 creates significant doubt about whether his Honour appreciated that the email related to events on 15 May 2020 and not to events on 29 May 2020.
The apparent conflation of the father’s evidence about the contempts alleged to have occurred at 4.40 am (sic) on 15 May 2020 and 3.15 pm on 29 May 2020 was not, it appears to me, confined to the determination of the 15 May 2020 allegation; rather, the contents of [38] persuades that, in determining the contempt alleged to have occurred at 3.15 pm on 29 May 2020, his Honour proceeded on the basis that the email referred to in the first sentence of the paragraph (being one in which the father said, at 4.30 pm on 15 May 2020, that he was at the mother’s house to pick up Y) was an email sent on 29 May 2020 when, in fact, it was sent on 15 May 2020. That his Honour relied – at least in part – on that email for his determination to dismiss the contravention alleged to have occurred at 3.15 pm on 29 May 2020 is apparent given his subsequent comments in the remaining sentences of that paragraph that: “The first matter to note is that the allegation is that the child was not available at 3.15 pm. The father provides no evidence that he was present at 3.15 pm”.
Given the above, I am persuaded that his Honour’s reasons are inadequate to enable the parties and this Court to be sure that his Honour in fact determined the allegation of contempt which related to 15 May 2020. To the extent that his Honour appears to have relied on the contents of an email sent on 15 May 2020 as a basis for his dismissal of the allegation particularised as having occurred at 3.15 pm on 29 May 2020, I consider his Honour to have erred.
I am not persuaded that his Honour’s reasons – found at [43]–[46] of the reasons – for the decision to dismiss the contempt alleged to have occurred at 4.00 pm on 29 May 2020 are inadequate or insufficient to enable the parties to understand the reasoning underpinning his conclusion that he was not persuaded that the mother’s actions involved a flagrant challenge to the authority of the Court. It was clearly open to his Honour to assess the evidence in the manner that he did; I am not persuaded that his decision to dismiss this allegation of contempt was “plainly wrong” or that his Honour erred in the manner asserted by the father in the Grounds of Appeal, as complemented by his written and oral submissions.
Whilst his Honour erred in saying, at [44] of the reasons, that the father’s evidence in support of this allegation of contempt was found at paragraphs 9 and 10 of his affidavit filed on 26 June 2020 – when paragraph 9 of that affidavit in fact relates to the contempt alleged to have occurred at 3.15 pm on 29 May 2020 – I am not persuaded that such error is material to his Honour’s decision to dismiss this allegation.
This is because it appears to me that his Honour’s decision to dismiss this allegation of contempt rested particularly upon him not being satisfied to the required standard that the mother had acted in a way that involved a flagrant challenge to the authority of the Court: such finding was one which was open to his Honour on the evidence.
I am not persuaded that his Honour’s reasons – found at [47]–[51] of the reasons – for the decision to dismiss the allegations involving contempts alleged to have occurred at 5.30 pm on 12 June 2020 and 3.45 pm on 26 June 2020 are inadequate or insufficient to enable the parties to understand the reasoning underpinning his conclusion that he was not persuaded to the requisite standard that the mother’s actions on each occasion involved a flagrant challenge to the authority of the Court. It was clearly open to his Honour to assess the evidence in the manner that he did and to arrive at his conclusions; I am not persuaded that his decision to dismiss these allegations of contempt was “plainly wrong” or that he erred in the manner asserted by the father in the Grounds of Appeal, as complemented by his written and oral submissions.
To the extent that it is necessary to do so, I record my rejection of the father’s contention that the primary judge erred in failing to draw the conclusions he advocated for from the evidence before him. His Honour’s findings of fact were clearly open to him; that he made findings with which the father does not agree does not establish error.
Costs
The father did not seek an order for costs or a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
In the event that the appeal succeeded because of an error of law – as it has in part – counsel for the mother sought a certificate pursuant to that Act in respect of the appeal or any re-hearing. Given the relatively limited basis on which I would allow the appeal, I am not persuaded to exercise the discretion to make an order for a certificate for either the appeal or the re-hearing of the remitted aspects of the applications.
Counsel for the mother also sought an order for costs in the event that the appeal was dismissed. I am not persuaded that the circumstances justify the making of an order that the father pay the mother’s costs of and incidental to the appeal because I have concluded he would partially succeed on the appeal; further, it was appropriate for him to pursue the primary judge’s failure to deal with a number of the allegations of contravention and contempt.
I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ainslie-Wallace & Hogan. Associate:
Dated: 13 October 2021
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