KAVANAGH & KAVANAGH
[2016] FamCAFC 233
•11 November 2016
FAMILY COURT OF AUSTRALIA
| KAVANAGH & KAVANAGH | [2016] FamCAFC 233 |
| FAMILY LAW – APPEAL – CHILDREN – Where the trial judge had reserved judgment after a contested parenting trial in which allegations of sexual abuse of a child of the parties had been made – Where the Independent Children’s Lawyer sought to re-open the hearing and delay delivery of judgment because the husband had been charged with unrelated criminal charges concerning child pornography and was released on a bail condition that he have no contact with children. FAMILY LAW – APPEAL – Where the husband’s time with the children had been subject to a supervision requirement before the trial judge had commenced the trial but the husband had not been exercising that time and had not seen the children for over a year. FAMILY LAW – APPEAL – Where the trial judge considered the lack of time spent, the seriousness of the criminal charges and the uncertainty about whether there was evidence that the children were involved in the criminal activity – Where the husband argued supervision would protect the children – Where the trial judge suspended the supervision order – No error found. FAMILY LAW – APPEAL – Where the husband complained that the trial judge allowed evidence to be considered which he had not had an opportunity to respond to – Trial judge offered the husband an adjournment but that was rejected – No error found. FAMILY LAW – APPEAL – Where the husband complained that the trial judge was biased but did not raise the issue at the time – No error found – Appeal dismissed. FAMILY LAW – COSTS – Costs sought by Independent Children’s Lawyer against husband – No hardship established by husband – Order made for husband to pay Independent Children’s Lawyer’s costs. |
| Family Law Act 1975 (Cth) – s 60CA, s 60CC, s 61DA, s 69ZR |
| Dunne v P (2004) 29 WAR 232 Goode and Goode (2006) FLC 93-286 Miller & Harrington (2008) FLC 93-383 P v P (1994) 181 CLR 583 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Kavanagh |
| RESPONDENT: | Ms Kavanagh |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Lilley |
| FILE NUMBER: | BRC | 8664 | of | 2011 |
| APPEAL NUMBER: | NA | 12 | of | 2016 |
| DATE DELIVERED: | 11 November 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy & Cronin JJ |
| HEARING DATE: | 11 November 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2016 |
| LOWER COURT MNC: | [2016] FamCA 162 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Queensland |
Orders
The appeal be dismissed.
The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,372.50.
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 Kavanagh & Kavanagh 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 12 of 2016
File Number: BRC 8664 of 2011
| Mr Kavanagh |
Appellant
And
| Ms Kavanagh |
Respondent
And
| Independent Children’s Lawyer |
EX TEMPORE REASONS FOR JUDGMENT
Cronin J
Mr Kavanagh (“the husband”), appeals against interim parenting orders made on 15 February 2016 by Forrest J. Ms Kavanagh (“the wife”) and the Independent Children’s Lawyer oppose the appeal.
There are four simple grounds of appeal, the amplification of which is found in the husband’s summary of argument filed on 12 August 2016. In short compass, the grounds assert a failure to have regard to the statutory requirements of Part VII of the Family Law Act 1975 (Cth) (“the Act”) (or, in the alternative, inadequacy of reasons), the absence of proper evidence to make the orders, complaints regarding a lack of procedural fairness and, finally, that the trial judge was biased.
It is convenient to deal with a procedural fairness challenge first. This ground complains about two things. First, over the opposition of the husband, the judge allowed the wife to read into evidence an affidavit to which he had no opportunity to respond. Secondly, that the judge allowed the Independent Children’s Lawyer to seek orders that were different to those she had sought in the application in a case which brought the relevant proceedings before the court. To determine those complaints, it is necessary to explain how the matter had come before his Honour and then to examine the course of the proceedings.
The two children of the parties are B, aged nine years, and C aged
eight years. After separating in 2011, the parties entered into a parenting arrangement under which the husband cared for the children for five nights per fortnight. Allegations of sexual abuse of B were made by the wife against the husband and in February 2013, there were consent orders made that provided for the husband to spend at least one hour per fortnight with the children either at a mutually agreeable contact centre or under the wife’s supervision. The husband was permitted to telephone the children at all reasonable times, but not less than once per week.
In November 2013, the husband commenced proceedings in the Federal Magistrates Court seeking increased and unsupervised time with the children. In May 2014, the February 2013 orders were amended by consent to provide that the husband spend not less than two hours with the children each alternate week.
The substantive parenting proceedings occurred in a contested hearing over four days in December 2014 before Forrest J. At its conclusion, his Honour reserved judgment. The husband advised that although he made an application to his Honour to vary the May 2014 supervised time order, that was rejected. Those orders then remained in place and there is controversy about whether the husband was thereafter offered an opportunity to spend supervised time with the children at a contact centre. The wife deposed to having undertaken the relevant intake sessions to enable the supervised time to occur. From the husband’s perspective, he was corresponding with the wife and was rebuffed. Either way, the husband ceased spending time with the children in January 2015 and had no telephone contact after February 2015.
In November 2015, the husband was charged with criminal offences. There is some confusion as to how many charges, but it is the nature of them that is significant.
There are at least eight charges all in respect of similar offences of making child pornography material available to other persons by either email or over the internet. In addition, the husband was charged with obstructing police. Having been charged, he was released on bail, a condition of which was and remains, that he not be in contact with any child under 17 years of age.
The November charges against the husband were the catalyst for the Independent Children’s Lawyer to file the application in the case in December 2015 seeking to do two things. First, she sought a stay of the handing down of the judgment that had been reserved. Secondly, she sought to re-open the trial to adduce more evidence predominantly about the husband’s charges.
When the hearing began before Forrest J, there was an issue about a subpoena to police about the relevant charges against the husband, but that is not the subject of any dispute before us. Having determined that interlocutory issue, Forrest J invited the parties to tell him what material he was to read. In that process, the solicitor for the wife told his Honour that she relied upon an affidavit filed some four days before, a copy of which had been provided to the husband. In turn, the husband told Forrest J what affidavit material he relied upon, but at no stage did he indicate that he objected to the material of the wife. In our view, he cannot do so now.
What the husband did raise was that the application of the Independent Children’s Lawyer was seeking procedural orders only and no mention was made of any intention to seek to alter the 2014 supervised time orders.
The Independent Children’s Lawyer had handed to Forrest J a set of proposed orders that included the suspension of the 2014 orders giving rise to
a complaint by the husband that he had come to court for procedural orders to re-open the trial and was suddenly faced with an application to suspend the 2014 orders.
There followed discussion between the husband and the judge about whether he was then seeking an adjournment. His Honour asked the husband what he wanted to do in the circumstances of having been made aware of the proposed suspension of contact orders applications, and he responded by confirming that he, too, wanted to change the extant orders so that there was specific supervised time and conditions. His Honour asked whether the matter should be adjourned to another date in April 2016. The husband who is a lawyer said that his preference was for his Honour to hear the arguments of the wife and the Independent Children’s Lawyer about the proposed suspension of the orders and then allow him to respond by which, one would presume him to mean that his case would then follow if the orders were not suspended.
Forrest J then queried whether the husband was content for him to hear and determine what was undoubtedly an oral application by the Independent Children’s Lawyer to suspend the orders, and the husband responded that given everyone was there “we may as well hear the arguments”.
Indeed, that procedure was followed, and in due course, the husband made his submissions not only opposing the suspension of time, but also seeking supervised time at a contact service and allowing a visit with his 84-year-old mother at her home where he lived.
The husband submitted there was “no cogent evidence” to support the orders sought by the Independent Children’s Lawyer and that there was “no sufficient evidence at all to support such an order”, but at no stage did he indicate that he had been prejudiced by his Honour proceeding as he did.
In outlining the course of the proceedings, his Honour made it sufficiently clear that he was proposing to hear an interim hearing in relation to the discrete issue of the suspension of the extant orders which, it must be noted, required supervision of the husband, but, indeed, had not been taking place for over
a year.
The importance of the parties understanding the nature of the proceedings was emphasised by the Full Court in Miller & Harrington (2008) FLC 93-383, and I am satisfied that the husband knew what the procedure was and how he could participate because he did so. The importance lies in the husband having the opportunity to be heard in relation to the proposed orders, (both those of the Independent Children’s Lawyer as well as his own proposals) (U v U (2002) 211 CLR 238 per Hayne J).
In addition, I am mindful that s 69ZR of the Act mandates the court to determine how any parenting hearing is to be conducted.
Having been offered the opportunity to have the case adjourned and then agreeing to the process suggested by his Honour, the husband’s claim of procedural fairness lacks merit. There is no substance in ground 3.
Ground 4 of the husband’s appeal asserts that the trial judge was biased against him. The summary of argument complains that his Honour displayed “apprehended bias” having suggested to the husband that he should have checked up on legislation before coming to court. This was a reference to the husband’s explanation about why he had not set out in his affidavit details about the charges laid against him. The husband competently explained that he was aware that his file had been the subject of a subpoena, but his Honour remarked that he had not said anything about his knowledge of the subpoena as a reason for not making reference to the charges. A second, and in my view, spurious complaint was that his Honour had read into the record details of alleged offences the husband had committed when, in the husband’s view, they had no relevance to the orders made.
No complaint was made by the husband at the hearing in relation to any of these matters. The failure to complain during a hearing about bias is usually fatal, and I see no reason in this case to depart from that principle. In any event, nothing I have read would justify any reasonable observer being concerned about what his Honour was doing or saying. There is no substance, therefore, to ground 4.
Turning, then, to the remaining two grounds. The husband asserts that his Honour did not apply s 60CA and s 60CC of the Act, and in so doing, failed to consider the best interests of the children. In the alternative, he complained that if there was sufficient consideration of those matters, then his Honour did not give adequate reasons for making the decision to suspend the extant supervised contact order.
The substance of the submission of the Independent Children’s Lawyer to his Honour and supported by those of the wife was that the husband had been charged with serious criminal offences for which bail had been fixed with
a condition precluding him from having contact with children.
In Goode and Goode (2006) FLC 93-286, the Full Court held that in interim parenting decisions, the court has to identify competing proposals, identify issues in dispute for that particular interim hearing, identify the contested relevant facts and then consider the matters in s 60CC so far as they are relevant to that hearing. Then insofar as issues of time become relevant,
a presumption in favour of equal shared parental responsibility in s 61DA had to be applied unless the court was satisfied that it ought not do so. I note in the present matter neither the husband nor anyone else, was seeking any orders relating to parental responsibility.
The Independent Children’s Lawyer’s position was that regardless of the criminal charges, the husband’s time with the children had not been occurring, and he had given no explanation for that. There were also unresolved questions as to whether the husband’s alleged criminal activities involved the children. The husband denied the children were involved.
The wife’s position was that his Honour had heard the substantive evidence in the trial and that the allegations against the husband relating to B were “fairly serious,” and now the husband had been charged with offences involving children. The wife acknowledged that the husband had not been convicted of anything, but that, combined with his not having sought time with the children for a year, meant there should be no change except that, it was submitted, out of an abundance of caution, the extant order should be suspended until at least his Honour determined the substantive trial issues.
The husband observed that he had not agitated for a re-opening of the case to solve the impasse over the supervisors of his time because he was hoping that judgment would not be delayed. The focus of his submission was that if his time was supervised, what possible risk could there be to the children.
Forrest J then delivered an ex tempore judgment in which his Honour referred to the paramountcy principle (at [39]) and the evidence at trial about the allegations concerning B which he described as “troubling and concerning” (at [40]). His Honour noted that the children had not had contact with the husband for over a year, and the husband had not communicated with them. The husband had taken no steps to fix the situation and then the criminal charges were laid.
His Honour then said:
[43]I am not satisfied that now reactivating a situation where the children start spending time again with the father and communicating with him on a regular basis where he has not had such time or communication with them for a year, is in their best interests. Particularly against the backdrop of very recent, serious child exploitation charges levelled against him in circumstances where the evidence before me does not satisfy me that the circumstances of the offences alleged against [Mr Kavanagh] did not involve the two children of the parties, and in circumstances where on his own bail undertaking [Mr Kavanagh] agreed not to have any contact with children under the age of 17 whatsoever.
[44]In the circumstances, I will not accede to [Mr Kavanagh’s] application and I will actually make the orders that are sought by the Independent Children’s Lawyer this morning and supported by the mother. Accordingly, I make these further orders in addition to the ones already made this morning.
His Honour then made the orders appealed.
The husband submitted that his Honour had not dealt with all of the s 60CC factors, nor weighed up the risk such as would justify making a no contact order. He submitted to Forrest J and repeated before this court that in
a supervised setting, he could not do any harm to his children. However, in discussion, the husband conceded that “risk” was not just confined to physical risk and covers many things.
His Honour identified the competing proposals and weighed them.
He identified the issue of whether there was a basis to keep the extant order in place where it was not being implemented against the alternative of altering the orders to a different form of supervision in circumstances of the husband having been charged with serious criminal offences associated with children. The latter carried the husband’s entitlement to the presumption of innocence in a criminal court, but there was a specific bail condition prohibiting his contact with any children. His Honour identified and considered his obligation under
s 60CC(2) relating to the protection of children whilst noting that notwithstanding the husband presented the serious proposition of now resuming a delayed relationship with the children, there was the uncertainty about any evidence concerning the question of the two children being involved in the charges that have now been laid.
In my view, his Honour gave consideration to all of the relevant factors as he was required to do, and having weighed them, made the decision that he did.
His Honour’s reasons were adequate in that I can discern how the decision was determined. Ground 1, therefore, has no merit.
Ground 2 asserts that there was no proper evidence upon which his Honour could have made the conclusions that he did. This ground has no merit.
The subpoenaed material in relation to the criminal charges was before the court, and the nature of the charges was considered. The seriousness and the nature of the charges is a matter that his Honour was entitled to consider when determining the risk to the children. As we discussed, there may be a prospect of the children spending time with their father only to have that stopped if
a term of imprisonment is subsequently ordered.
In his affidavit, the husband said nothing about the criminal charges other than that they existed. He explained, as I have earlier indicated, that was because he was aware that the Independent Children’s Lawyer had sought the police material under subpoena, and in any event, he had restrictions on what he could say as a result of his bail conditions.
In respect of the seriousness of the charges, his Honour noted that it was only the materials produced under subpoena that gave insight into what was said to have happened. As I have already said, the charges included making available to other people child pornography in the form of computer-generated images and computer-generated video files. His Honour referred to the police child sexual exploitation investigation task force, by search warrant, attending at the husband’s address where the husband was the sole occupant. It was alleged that the husband obstructed police by endeavouring to turn off the power to his computer which would have resulted in the activation of an encryption device. That activity led to him being restrained, and to a separate charge. Importantly, his Honour noted that detectives located messages said be authored by the husband relating to the dissemination of the material. His Honour said that it was sufficient to say that some of the messages involved links to files that the police assert depict female children either posing in sexually explicit poses or being subjected to what could only be described as confronting and horrific sexual assault including rape by adult males.
It was submitted by the Independent Children’s Lawyer that the husband faced a problem with the fact that he was subject to the bail condition of not coming into contact with children. The husband responded by submitting that those sorts of bail conditions were not unusual and he had been given advice that they did not preclude him from having time with his own children under any order of this Court. Whilst he is without legal representation in these proceedings, he is a practicing solicitor, but he was not able to point to any legislative provision or any authority that supported his proposition.
In my view, it is also of significance that having been given advice, and the husband being made aware of the Independent Children’s Lawyer’s position that the bail condition was an impediment; no application for any variation of his bail conditions has been made. In my view, and contrary to the assertion in ground 2, there was evidence to support the orders ultimately made.
One of the husband’s complaints is that his Honour relied upon hearsay evidence being given from the bar table and the wife being permitted to rely upon hearsay/opinion evidence in her affidavit, but he did not take that point at the time and importantly did not state that what his Honour was told was incorrect.
The absence of clarity around whether the two children were involved in the alleged criminal activities alone would have been sufficient to justify the orders given the obligation of the Court pursuant to s 60CC(2A) to give greater weight to the primary consideration set out in s 60CC(2)(b) than to the primary consideration set out in s 60CC(2)(a) upon which the husband placed much emphasis in his submissions. Section 60CC(2)(b) emphasises the need to protect children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The fact that the husband had been charged with multiple serious child exploitation charges combined with the fact that he had not seen the children for almost a year and that his proposed arrangements would prima facie place him in breach of his bail conditions provided his Honour with a more than sufficient base to make the orders that he did.
In my view, the appeal should be dismissed.
At the conclusion of the appeal, we heard submissions in relation to costs.
The wife did not seek any order for costs. The Independent Children’s Lawyer sought an order that if the husband’s appeal was unsuccessful, he pay the Independent Children’s Lawyer’s costs said to be $4,372.50. The husband did not dispute that he had the capacity to meet such an order. As he has been wholly unsuccessful, an order for costs in that amount is appropriate and should be made against the husband.
Thackray J
I agree with Justice Cronin’s reasons and the orders that his Honour proposes.
I particularly agree with what his Honour has said in relation to the issue of bail conditions. It has come to my attention, while his Honour was delivering his reasons, that this issue has been considered by the Supreme Court of Western Australia in Dunne v P (2004) 29 WAR 232, where Malcolm CJ discussed the interrelationship between bail conditions and the making of orders under Part VII of the Act.
In giving his decision, the Chief Justice referred to P v P (1994) 181 CLR 583 at 602, where it was said, consistent with views that were expressed from the Bench during the course of argument this morning, that:
A law of the Parliament conferring jurisdiction upon a federal court in general terms will, in the absence of a clear legislative intent to the contrary, ordinarily be construed as not intended to confer jurisdiction to make an order authorizing or requiring the doing of an act which is specifically prohibited and rendered criminal by the ordinary criminal law of the State or Territory in which the act would be done.
Malcolm CJ therefore concluded that there is nothing in Part VII of the Act to indicate that the power to make a parenting order is to be exercised other than in conformity with the general law of a state, including the Bail Act, and so for that additional reason, I agree with what Justice Cronin has said.
Murphy J
I also agree that the appeal should be dismissed for the reasons given by Justice Cronin. I also agree that the husband should pay the costs of the Independent Children’s Lawyer in the fixed sum.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Cronin JJ) delivered on 11 November 2016, edited to correct grammar and some infelicity of expression.
Associate:
Date: 24 November 2016
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