Kettle & Baker
[2014] FamCAFC 85
•14 May 2014
FAMILY COURT OF AUSTRALIA
| KETTLE & BAKER | [2014] FamCAFC 85 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – parenting proceedings – contravention application – where the primary judge adjourned the hearing of a contravention application until a trial of substantive parenting proceedings – where the Full Court found no error of discretion in the primary judge’s orders – appeal dismissed – no order for costs. FAMILY LAW – APPEAL – Application in an appeal – where the Full Court found that the orders sought by the appellant could not be made by the Full Court – application dismissed. |
| APPELLANT: | Mr Kettle |
| RESPONDENT: | Ms Baker |
| INDEPENDENT CHILDREN’S LAWYER: | Berck & Associates |
| FILE NUMBER: | BRC | 6532 | of | 2009 |
| APPEAL NUMBER: | NA | 79 | of | 2012 |
| DATE DELIVERED:: | 14 May 2014 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Strickland and Hogan JJ |
| HEARING DATE: | 25 June 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT DATE OF ORDERS: | 19 June 2012 |
REPRESENTATION
| APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | No appearance |
Orders
The appeal be dismissed.
The Application in an Appeal filed in Court on 25 June 2013 be dismissed.
There be no order for costs in relation to the appeal or the Application in an Appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kettle & Baker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 79 of 2012
File Number: BRC 6532 of 2009
| Mr Kettle |
Appellant
And
| Ms Baker |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Kettle (“the father”) against an order made by Forrest J on 19 June 2012 whereby his Honour adjourned the hearing of an application, which the father had brought against Ms Baker (“the mother”) alleging contravention of certain parenting orders, to “the trial”, being the trial of an application by the father for further parenting orders in relation to the child B, who is the child of the parties’ relationship and who was born in August 2000.
Prior to the hearing of the appeal, both the solicitors for the mother and the Independent Children’s Lawyer had informed the Appeal Registrar that they did not wish to be heard on the appeal and would abide by any decision of the Court.
There may be an argument that in order to appeal Forrest J’s order adjourning the hearing of the contravention application, the father requires leave to appeal as the order is interlocutory. However, it might also be argued that it is an interlocutory order relating to children’s issues and thus does not require leave. Given the complexities that surround the proceedings in which the father has been involved, we propose in the interests of simplicity, to proceed on the basis that leave to appeal is not required.
In order to understand the issues raised by the father on the appeal, and also in an Application in an Appeal which we allowed him to rely on before us, it is necessary first to make some reference to the long history of the proceedings between the father and the mother in relation to this child.
There has also been a long history of proceedings between the father and the mother, and also between the father and Ms Green, who is the mother of two older children of the father, concerning child support matters. But as we endeavoured to explain to the father at the hearing before us, we are not in the present appeal concerned with the child support proceedings (Appeal Transcript page 4-5). We are here concerned only with the parenting proceedings in relation to the child, B, and indeed with one order only, which can be broadly regarded as being part of those proceedings.
History of the parenting proceedings in relation to B
On 2 April 2002 a Registrar made orders for B to live with the mother and have “contact” with the father. The “contact” orders only extended until August 2003 when if there was no agreement, there would be further orders.
On 12 October 2004 the Federal Magistrates Court (as it then was) made further contact orders.
After a contested hearing in the Family Court on 13-17 November 2006, Bell J made orders on 24 November 2006 which included orders for the child, B, to live with the mother and “spend time” with the father. An appeal against those parenting orders was dismissed on 7 July 2009, although an appeal against certain child support orders (also made on 24 November 2006) was successful.
On 24 July 2009 Murphy J transferred all “outstanding” applications to the Federal Magistrates Court.
On 20 August 2010, Jarrett FM (as his Honour then was) issued a recovery order for the return of the child to the mother; ordered that the child have no contact with the father pending further orders; and transferred the parenting proceedings to the Family Court.
On 1 September 2010, Registrar Kane designated the proceedings concerning the child as a “Magellan” matter, invited the Queensland child welfare department to intervene, and made an order for the child to be separately represented. (A “Magellan” matter is one involving serious issues of child abuse and is subject to special case management).
On 2 November and 8 December 2010 Murphy J made procedural orders for the “Magellan” trial. The orders of 8 December 2010 listed the trial for
25 July 2011, and provided for psychiatric assessments of the parties.
On 30 March 2011 Registrar Kane vacated the trial dates because of the father’s appeal against the orders made by Murphy J on 8 December 2010.
On 10 August 2011, the Full Court (Coleman, May and Strickland JJ) adjourned the hearing of that appeal on account of transcript issues. Ultimately, on 1 June 2012, the Full Court dismissed the appeal for want of prosecution.
On 20 February 2012 the father had filed an application seeking that the mother be dealt with for alleged contraventions of the orders of 24 November 2006 which related to the place where the mother and the child were to live and to the time that the father was to spend with the child. The application also contained allegations of abuse of the child by the mother.
That contravention application came before Forrest J on 19 June 2012 when both the father and the mother appeared without legal representation.
After considerable discussion with both parties, his Honour determined that the contravention application should be heard at the same time as the “Magellan” trial. His Honour’s order giving effect to that determination is the subject of the present appeal. His Honour did not deliver formal reasons for judgment in relation to this order, but his reasons well emerge from the transcript of his discussion with the parties when they were before him.
On 12 September 2012 Registrar Brooks made orders in which it was noted that the father had advised the court that the police were now investigating allegations “made several years ago” and that the father considered it essential that documents from this investigation be available to any psychiatrist preparing a report concerning the case; and that the father would comply with the order made on 8 December 2010 in relation to his attendance for a psychiatric assessment once the investigation had been completed. The Registrar ordered that the matter be adjourned until the father advised the court that the police investigation has been completed, and that at that time the father would request a re-listing of the matter and would file an initiating application outlining the final orders which he sought.
The grounds of this appeal
As will be seen from what follows, the father’s grounds of appeal are not in conventional form, being in many instances more in the nature of submissions, if not just bare assertions of fact. However, we consider that the more useful course is to set out in full the father’s grounds as drafted rather than attempt to summarise them.
Ground 1:
The hearing on 19 June 2012 was listed for hearing of the father’s Contravention Application. The Contraventions were found by the court.
There is no reason why judgment should not have issued Ex Tempore but instead, his honour erred in Law or in the alternative, his Discretion miscarried by his refusal to render judgment. This error of Law prima facie leaves the father without crucial findings of fact before the court at the postulated final trial. He is inarguably entitled to have that evidence before the court for any final hearing and it is unreasonable and unlawful for proof of said contraventions to not be available to the father beforehand to put into Evidence.
In his oral submissions in support of this ground, the father took us to
pages 26 to 32 of the transcript of the hearing before Forrest J where the mother, in the father’s words, “admits that she contravened the orders” (Appeal Transcript p.12). The father’s complaint to us then was that despite this admission, “nothing was done about it”.
However, as we endeavoured to explain to the father, the mother went on to claim before Forrest J that she had “a reasonable excuse”, and again as we endeavoured to explain to the father, if she could establish such an excuse, no contravention could be found.
Thus, it is not correct to assert as this ground of appeal does, that “[c]ontraventions were found”. Contraventions were not in fact found. Rather in the exercise of his discretion, his Honour adjourned the determination of the contravention application to the trial of the pending parenting proceedings.
As we will later discuss more fully, it was within his Honour’s discretion to do so, and his exercise of that discretion cannot be said to have miscarried.
The complaint contained in the final two sentences of this ground, being to the effect that the father will be disadvantaged at the trial because he will not be able to rely on findings of contraventions, is also misconceived. This is because he will be able in support of his case at trial to rely on the evidence on which he would rely in support of the contravention application (subject, of course, to issues of admissibility).
The first ground of appeal has not therefore been established.
Ground 2
His Honour displayed clear bias on the second subject occasion against
Mr [B], with whom he had no prior dealings. The audio record of proceedings inarguably establishes that bias, which arguably tainted His Honour’s dealing with the substantive matter brought by the father.It should be explained that Mr B is a person who on certain occasions has been permitted to assist the father in court; for example, Murphy J’s orders of
2 November and 8 December 2010 permitted Mr B to act on those dates
“as a silent McKenzie Friend for the father”.
Mr B was not apparently at the hearing before Forrest J on 19 June 2012 although his name was mentioned in discussions between his Honour and the father at that hearing (Transcript, 19 June 2012, pp. 14, 18 and 45).
There could not be any substance in a claim of “bias” on the part of his Honour in the technical legal sense given that Mr B is not a party to, or even a witness in the proceedings. But be that as it may, we do not accept that any references to Mr B by his Honour reveal any prejudice, or “bias”, on his Honour’s part against Mr B.
There is thus no substance in Ground 2.
Ground 3
Additionally, His Honour has deprived the father of assistance at court which was, or may have been prejudicial to his legal rights according the received Law of England in relation to the legal imperative for a court’s discretion to be favourably given to allow an unrepresented party access to “papers, pens,
a book or a person” (to assist them) provided that such assistance does not impede the proper conduct of proceedings.
We have considered the transcript of the hearing before Forrest J and have been unable to find any passage where his Honour made any express statement which would have “deprived the father of assistance at court”.
We can only conclude, particularly in light of the father’s oral submissions to us, that because he perceives that his Honour displayed “bias” towards Mr B, as was asserted in Ground 2, he considers he will not be able to have the assistance of Mr B in proceedings before his Honour. However, we have already determined that there is no substance in the father’s claim that his Honour was “biased” towards Mr B, and therefore this ground cannot succeed.
Ground 4
His Honour erred in Law and his discretion miscarried when he determined that merely because Justice Murphy had rejected an earlier application regarding the terms of reference to be given for the putative report by
Dr [M], single expert witness psychiatrist, and that a later full bench appeal did not specifically overrule that particular order, that His Honour lacked the jurisdiction or capacity to make an additional or varied order based upon what was before the court on the occasions when His Honour was appraised of the matter. There was full capacity to make the order sought by the father and the circumstances before the court clearly made out the case for the unrebutted evidence of child sexual abuse by the mother to be investigated in a Magellan case being the prime priority for Dr [M] to address, and that, absent any evidence whatsoever in favour of the father having a psychiatric examination, His Honour failed to apply the Law in refusing to make the order sought by the father to discharge the court’s clear statutory duty to consider its paramount duty to the wellbeing of the subject child.
It emerged from our discussion with the father that this ground was really directed to the earlier decisions of Murphy J and Jarret FM, which are not the subject of the present appeal.
To the extent that this ground is directed to Forrest J’s decision, which is the subject of the appeal, the father must understand that the issues before Forrest J were of very narrow compass, and that it would not have been appropriate for his Honour to have considered any matters other than those directly related to the contravention application and the possibility of the adjournment of that application to the pending trial.
This ground has therefore not been established.
Ground 5
His Honour erred in Law and his Discretion miscarried in that he ignored the clear imperative put before him and failed to make appropriate orders regarding:
a) No proper report on the relevant matters could be appropriately done before the child spends significant time with his father and
b) Contact has been occurring and
c) Police and Child Safety Department personnel have finally been given a brief including relevant court papers, requested to report on the matters therein alleged or evidenced and their respective reports provided to the parties well before any final hearing might proceed.
What we have said in relation to Ground 4 also applies to Ground 5, being that this appeal is only against the decision of Forrest J, and that Forrest J was limited in the orders that he could make given the nature of the application before him.
Therefore this ground must also fail.
Ground 6
His Honour erred in Law and his discretion miscarried in that he gave no due weight to the unrebutted Evidence of [Mr H], which evidence of serious child sex abuse is now, for the complete lack of any rebuttal evidence, legal fact. Faced with child sex abuse by the mother as legal fact, there can be
no excuse for His Honour not acting protectively by putting the child into
the sole care of the unimpugned father.
Quite separately, His Honour erred in Law by not, in the above circumstance, ensuring that international Law was complied with and the child [B] placed in a situation where he was to spend significant regular time with his father,
not none, after nearly two years with no contact or time spent with
his blameless father.
The transcript of the hearing before Forrest J shows that his Honour could not have accepted the evidence of Mr H given that that witness was not available for cross-examination on his affidavit on which the father wanted to rely (See for example Transcript, 19 June 2012, p. 4-5). Therefore his Honour’s discretion did not miscarry as is asserted in this ground of appeal. Again as was explained to the father by us, the fact that Forrest J adjourned the hearing of the contravention application gave the father a further opportunity to establish
his case. (See Appeal Transcript pp.18-45)It did emerge during our discussion of this ground (and also of some of the other grounds of appeal) with the father that he finds it difficult to understand how this case seems to have been transferred back and forward between the Family Court and the Federal Magistrates Court (now the Federal Circuit Court), particularly when in the orders of 7 July 2009, the Full Court remitted the child support issues to “a judge [of the Family Court] other than the Honourable Justice Bell”.
As will have been seen from the history which we earlier set out, after the Full Court made its orders of 7 July 2009, Murphy J transferred all outstanding applications to the Federal Magistrates Court. This was a course open to Murphy J, especially as, at least as we understand the position, the outstanding applications at that time related to child support issues; such issues are largely dealt with by that Court. We do not understand there to have been any outstanding parenting issues following the Full Court decision of 7 July 2009.
It seems that parenting proceedings were again started when the mother sought a recovery order in relation to the child in August 2010 in the Federal Magistrates Court, which again was the appropriate court for such proceedings. However, once the father had raised sexual abuse issues, it was appropriate for Jarrett FM to transfer the parenting proceedings to the Family Court to be dealt with as a “Magellan” proceeding. The parenting proceedings concerning the child have remained in the Family Court since September 2010. While the course of the proceedings concerning the child may be confusing to the father, we are satisfied that there has been nothing inappropriate about that course.
Ground 7
Because of the inexcusably fragrant refusal by His Honour to make appropriate orders in compliance with the Law of Australia and International Law, the father has been grossly inconvenienced and put to needless cost which he can ill afford and the child [B] has had his rights grossly impinged upon in a seriously and permanently damaging way. Accordingly, it is no less than appropriate that true responsibility for these things be found to rest with the Crown and an order for costs in the sum of $5,000 ought be made in the form of costs certificate in favour of the father, in part to provide some costs
of remediation for the needless psychological damage to the child.
In the course of our discussion with the father about this ground, he confirmed to us that his central complaint in this appeal was that Forrest J did not determine the contravention application, but rather adjourned it to be heard at the parenting trial.
His Honour’s reasons for taking this approach emerge from the following passages of the transcript before him:
HIS HONOUR: … Well, I’m a Magellan List judge now anyway, so it might be me who hears the trial. But I can’t give any guarantees about that. But, anyway, Mr [Kettle], what I'm thinking at the moment, and I'm asking – I mean, I'm telling you what I'm thinking because I'm inviting you to comment upon it, but I currently don't propose to hear your contravention application now. I propose to adjourn it till the matter is head (sic) – till the trial is heard, right, because I already am of the view that the matters that are connected with the alleged contraventions are clearly connected with all of the parenting issues in this case, right. You haven't had a trial six months ago or a year ago or even two years ago where you got orders in place that the mother is now breaching or been contravening, right. The contraventions that you're alleging are contraventions of orders that are years old in some respects. And you're making – the most central serious contravention application is based on an allegation that she sexually abused your son which is an issue that's a live issue in the trial.
There's no way I'm going to hear and determine that one, especially when Mr [H] is not available. And you're going to have grave difficulty ever getting any judge of this court to allow you to rely on
Mr [H's] affidavit unless he is here to be cross-examined on it, but
I can't speak for all others, but certainly – you know, I can't bind other judges. But I tell you what, if the trial is ultimately heard before me, and you asked me to read that affidavit and take it into account, and
Mr [H], you say, "I can't find him. I don't know where he is, and
he's not in the state," I won't give much weight to that at all. How easy would it be to get someone to swear an affidavit who is never going to be coming to court?(Transcript 19 June 2012, p. 25)
HIS HONOUR: … There used to be a view in this court, held by some judges, that you couldn’t deal with a parenting case until you deal with the contravention application first and foremost. Hear it, decide it, and deal with it. All right. But I’ve had a look at that. I’ve had cause to consider that recently, okay, in a matter very much like this. Okay? You may have heard about it, you may not have, because I know Mr [B] is involved in that, assisting the gentleman litigant in that case as well. But while there might not have been – you know, there has been a couple of them. It might not have been that one. But in any event, I consider that contravention proceedings, being under division 13A, fall under – they are Part VII child-related proceedings.
There’s no doubt about that, in my view. They therefore fall under the auspices of within the powers conferred on this court by division 12A. That lets me determine how these matters are to be run, having regard to the principles of division 12A, like I read them out to you. I consider, in some cases like this, that hearing what are complex contravention applications that are intricately wound up in the parenting orders application at the same time as the parenting application is the appropriate course. Not in all cases, but it is in these types. All right. There are a number – and you can tell Mr [B] if you like, there are a number of cases where there are parenting cases pending, and fathers like yourself are bringing these contravention applications, then miraculously – or I won’t say miraculously – but coincidentally, saying exactly the same thing as you when I ask what do you want to happen. All right. “I just want reinstating, I want contact now. I want to see my child now”. Before we have a proper trial where those things have to get properly discussed and determined and considered. Discussed, considered and determined. All right. So I’m not going to be – I’m not going to allow contravention proceedings to subvert the usual trial process. Okay?
(Transcript 19 June 2012, p. 45)
There is no error in what his Honour has said in the above passages such as would call for our interference with his decision.
Thus as none of the grounds of appeal have been established, there can be no question of a costs order, or certificate, in favour of the father as sought in his last ground of appeal.
The orders sought in the Notice of Appeal
Towards the conclusion of the hearing of the appeal, we explained to the father that even if one or more of his grounds of appeal were to be successful (which having regard to these reasons, they have not been), most of the orders which he sought in his Notice of Appeal could not be made by this Court on this appeal, which is only against the adjournment of the hearing of the contravention application.
The only orders which we could have made, had the appeal been successful, would have been orders which first discharged or set aside the order adjourning the hearing of the contravention application, and which then remitted that application for re-hearing.
We would not have decided the contravention application ourselves, and we could not have made any of the orders sought concerning the residence arrangements for the child.
We would also not have made any procedural orders in relation to the parenting trial, although we note that the orders which were made by a Registrar on
12 September 2012, that is, subsequent to the hearing before Forrest J, appear to cover some of the matters which were the subject of certain of the orders sought in the Notice of Appeal which was before us.
Application in an appeal
There was also before us at the hearing of the appeal an Application in an Appeal from the father dated 18 June 2013. We understood that although that application had been served on the other parties, it had not been accepted for filing by the Registrar. Given that we undertook to consider the application in our reasons for judgment in relation to the appeal, we are prepared to regard the application as having been filed in court on 25 June 2013.
The first order sought in the Application in an Appeal was that May and Murphy JJ should not sit on the present appeal. There would be no utility in such an order because neither of their Honours was listed to sit on the appeal. However, the father should understand that there are only a very limited number of Appeal Division Judges on the Family Court, and the fact that such a Judge has sat on an earlier appeal from a particular appellant does not provide a reason for that Judge not to sit on a later appeal from that appellant.
The second order sought in the application seeks a declaration that the
re-hearing (presumably of the child support matters) ordered by the Full Court on 7 July 2009 has not yet occurred; that the subsequent transfer by Murphy J of outstanding matters to the Federal Magistrates Court was ultra vires; and that all subsequent hearings and orders after 7 July 2009 are ultra vires.
As we have emphasised in these reasons, we are only concerned, and can only be concerned, on this appeal with the order which is the subject of the appeal, being the order made on 19 June 2012 adjourning the hearing of the contravention application. That order is entirely unrelated to the orders made by the Full Court on 7 July 2009. Nevertheless, we have endeavoured earlier in these reasons, to provide some brief explanation of our understanding of the course of the father’s proceedings since the Full Court orders of 7 July 2009.
Order 3 sought in the application appears also to seek a declaration that all orders involving the father made since 7 July 2009 be declared null and void, or alternatively stayed. We would not make such orders for the reasons explained in the last paragraph.
Another Order sought, which is also numbered 2, and the order which is numbered 4 and is drafted in the alternative, relate to arrangements for the child, B. As already explained, these are not orders which we could make on this appeal.
The final order sought (which is numbered 5) in the application seeks a
“lump sum” costs order in favour of the father against either the mother or
“the Crown”. Given that neither the application with which we are currently dealing, nor the appeal have succeeded, this is not an order which could be made.
For the reasons which we have just given, the Application in an Appeal must also fail.
Costs of the appeal and the application in an appeal
As we have already indicated, the lack of success of both the appeal and the Application in an Appeal means that no costs order can be made in the appellant father’s favour. The mother and the Independent Children’s Lawyer having not participated in the appeal would have no entitlement to a costs order. There will therefore be no order for costs in relation to the appeal or the Application in an Appeal.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Hogan JJ) delivered on 14 May 2014.
Associate:
Date: 14 May 2014
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