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
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…
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CaseChat Overview and Summary
The court found that Order 5 of the July 2019 orders did not specify which parent was responsible for arranging the individual counselling for X. Consequently, it was not in error for the primary judge to conclude that the order was uncertain on this point. The court held that it was open to the primary judge to assess the evidence and conclude that the father had not established that the mother had contravened the order. The reasoning provided by the primary judge was adequate and the court was not persuaded that the decision was plainly wrong or that there was an error as argued by the father. The father's appeal was thus dismissed.
The final orders of the court upheld the primary judge's decisions and dismissed the father’s appeal. The court confirmed that the primary judge did not err in concluding that the terms of Order 5 were uncertain and that the father had not established the mother’s contravention of the order.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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]; andii.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.