Kisiel & Kisiel
[2022] FedCFamC1A 218
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Kisiel & Kisiel [2022] FedCFamC1A 218
Appeal from: Kisiel & Kisiel [2022] FedCFamC2F 1326 Appeal number: NAA 195 of 2022 File number: WOC 389 of 2021 Judgment of: AUSTIN J Date of judgment: 20 December 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Risk of harm – Where the father appeals orders restraining him from approaching the mother and the parties’ child and for the child to spend only professionally supervised time with him – Procedural Fairness – Where the primary judge conducted the hearing on an “interim interim” basis – Where the primary judge has not since returned to finalise the interim dispute – Where there can be no procedural fairness by doing what the parties mutually want – Asserted error of law – Where it was unnecessary for the primary judge to address each and every factor prescribed by s 60CC of the Family Law Act 1975 (Cth) when the parties did not do so – Whether the primary judge made the injunctions “without proper basis” – Where there can be no complaint when the father acquiesced to the injunctions – No error identified – Appeal dismissed – Costs ordered in a fixed sum.
FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the father is still able to revive the as yet unfinished interlocutory hearing –Where the evidence would be more appropriately adduced in support of an application to vary the appealed orders below – Application dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.06, 5.08, 13.39
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165
Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 52 Date of hearing: 12 December 2022 Place: Newcastle (via video link) Counsel for the Appellant: Ms Tabbernor Solicitor for the Appellant: Sward Law Counsel for the Respondent: Mr Havenstein Solicitor for the Respondent: Rossi Simicic Lawyers Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Maguire & McInerney Lawyers ORDERS
NAA 195 of 2022
WOC 389 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KISIEL
Appellant
AND: MS KISIEL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
AUSTIN J
DATE OF ORDER:
19 DEcember 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 December 2022 is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $13,714.70
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kisiel & Kisiel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
By an Amended Notice of Appeal filed on 2 November 2022, the father appeals from interim parenting orders made on 11 August 2022 under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 2) in respect of the child born to his relationship with the respondent mother.
The appealed orders relevantly restrain the father under s 68B of the Act from approaching the mother and the parties’ child (Order 2), provide for the child to live with the mother (Order 3), allow the child to spend time with the father under professional supervision for no less than two hours each week (Order 4), and restrain the father from contacting the child outside those times (Order 5).
An Independent Children’s Lawyer (“the ICL”) was simultaneously appointed to represent the child’s interests in the proceedings (Order 6). Despite not having taken part in the original interlocutory hearing, the ICL appeared in the appeal and resisted it, as did the mother.
For the reasons which follow, the appeal is dismissed.
Background
The child was born in 2017 and is five years of age.
The parties separated in 2020, after which time the child lived with the mother and spent substantial time with the father until mid-2022. The regime was voluntary and was not regulated by any interim orders. In June 2022, the father refused to return the child to the mother, prompting a contest over interim orders.
On 4 July 2022, interim orders were made for the child to live with the mother and the father was directed to return the child to her by noon that day. No provision was made for the child to spend time with the father, but the parties’ interim parenting dispute was listed for further hearing before the primary judge on 11 August 2022.
Due to the mother’s intended reliance upon belatedly served evidence, the hearing proceeded on the understanding that the primary judge would make the orders on what was described as being only an “interim-interim” basis, with the interlocutory dispute having to be finalised at a later time. The primary judge pronounced the orders and delivered ex tempore reasons following the hearing on 11 August 2022.
Application in an Appeal
On 9 December 2022, one business day before the hearing, the father unsuccessfully tried to file an Application in an Appeal seeking leave to adduce further evidence in the appeal. It was instead filed on 12 December 2022 and he sought to prosecute it at the hearing. The application is dismissed for several reasons.
First, under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the application was made late in the appeal (r 13.39(1)), without any satisfactory explanation for its lateness, and the application failed to specify the grounds of appeal to which the further evidence supposedly relates (r 13.39(2)(b)). Ironically, one of the complaints made by the father in the appeal was of the mother’s tardiness in filing affidavit evidence for the hearing before the primary judge.
Second, the further evidence sought to be adduced was that contained within the father’s accompanying affidavit affirmed on 9 December 2022, which is intended to be evidence given by him in reply to the affidavit filed by the mother just in advance of the hearing before the primary judge. The Rules would not have allowed the father, without leave, to rely upon a reply affidavit in the interlocutory hearing before the primary judge (rr 5.06 and 5.08(1)). If there was no justification for it then, there could be no justification for it now.
Third, for the reasons given below in rejecting the father’s complaint of procedural unfairness in Ground 6, the father is still able to revive the as yet unfinished interlocutory hearing before the primary judge and seek to adduce the evidence in that forum. The appeal is not the place to complete the unfinished original hearing. The evidence would be more appropriately adduced in support of an application to vary the appealed orders (CDJ v VAJ (1998) 197 CLR 172 at [56], [119], [150] and [186.9])
Ground 1
This ground contends the primary judge failed to afford the father procedural fairness by acceding to the parties’ proposal to hear the dispute on an “interim-interim” basis, but then failing to return and finalise the interim dispute. The complaint is without merit.
The mother failed to file and serve her evidentiary material for the hearing within the time allowed by the primary judge, in which event the father opened the hearing by asserting it should proceed on an “undefended” basis. The primary judge sensibly rejected the proposal because the dispute was not “undefended” at all. The mother appeared at the hearing with legal representatives ready, willing and able to vigorously contest the outcome despite not having filed her material on time, so her default had to be handled in a more pragmatic way – such as by her deprivation from reliance upon the late evidence or by an adjournment of the hearing, perhaps attended by a costs order against her.
As an alternative to an “undefended” hearing, the father’s counsel suggested an adjournment to the primary judge, with the mother to pay his costs thrown away. In response to that suggestion, the following exchanges occurred between the primary judge and the father’s counsel as the matter was progressively mentioned during the morning:
HIS HONOUR: … but let’s just deal with the question of me making such a serious decision…of a child. I won’t be doing that on an … light of the material … I appreciate it may not be fair to proceed to the hearing today, being it’s filed so late, but my preference would be for an adjournment, not to make such a serious decision … without the benefit of the mother’s evidence.
[COUNSEL FOR THE FATHER]: Certainly, your Honour. …
HIS HONOUR: I will stand the matter in the list till 11 o’clock and perhaps you can each have some discussions about how you wish to proceed, but I will make it clear that these are not circumstances in which the court should rely upon technical objections when it has such a serious decision to make. …
…
HIS HONOUR: Well, we will come back at 10 to 12 and I will deal with this matter. But, I think my arrangement is to deal with it by an interim basis. …
…
[COUNSEL FOR THE FATHER]: Your Honour, it’s my submission that, it would be appropriate to deal with the matter on an interim basis. The father is concerned that if – there are no orders in place at the moment except for an order that [the child] be returned to the care of the mother. It’s certainly the mother’s position that, [the child] would spend no time with his father unless supervised, and in my submission that isn’t appropriate in this case. So if that is to be the case and the mother won’t resile from that position, pending an interim hearing, then I would seek that the matter be dealt with on an interim, interim basis today.
HIS HONOUR: What does your client seek on an interim, interim basis in terms of time?
[COUNSEL FOR THE FATHER]: He seeks the orders, your Honour, that are set out in his amended – it’s an amended, amended initiating application filed on 18 July.
(Transcript 11 August 2022 p.5 lines 39–45; p.6 lines 21–24; p.10 lines 44–45; p.12 lines 33–46)
(Emphasis added)
The hearing then proceeded on an “interim-interim” basis, as was agreed.
As the hearing unfolded, the primary judge confirmed that position several times over, saying:
HIS HONOUR: I’m doing this on an interim/interim basis …
…
HIS HONOUR: I don’t know how to do an interim/interim hearing other than to deal with the most pressing issues. I appreciate, there might be an explanation. I don’t propose a long adjournment to come back to deal with the interim matter in full, but I do need to know if there are issues of risk …
…
HIS HONOUR: … But this is just an interim interim, and I’m judging as much as is appropriate with the information at hand. We will come back and we will deal with the rest of that. All right. Thank you, both.
(Transcript 11 August 2022, p.22 line 31; p.27 lines 17–20; p.41 lines 43–46)
(Emphasis added)
As the primary judge foreshadowed, interim orders were pronounced and ex tempore reasons were delivered immediately following the hearing. Besides the pronouncement of substantive parenting orders, the primary judge made an order confirming the existing listing of the matter about six weeks ahead on 29 September 2022 for “mention” (Order 11) and granted the ICL leave to re-list the matter on short notice (Order 10).
The matter was later administratively adjourned from 29 September 2022 to 8 November 2022, when an order was made allowing the parties to approach his Honour for the appointment of another interim hearing date once the single expert report was released (Order 2). The orders made by the primary judge on that date were attended by these notations:
A.The court offered the parties the opportunity for an Interim Hearing to conclude the hearing of the Application in a Proceeding in which Interim Interim orders were made on 11 August 2022. The father declined that opportunity.
B.The court has been advised that the parties are organising the preparation of an expert report, and that any further interim determination should await release of that report.
(Emphasis added)
Evidently, the primary judge has not since returned to finalise the interim dispute by making either substitute or supplementary interim orders because the parties did not seek it and, most recently, have requested his Honour to abstain from doing so.
There could be no procedural unfairness in doing just as the parties mutually want. The father’s counsel conceded he could have ensured the restoration of the interim dispute for completion of the hearing by the primary judge had he wanted. There is still nothing preventing him from doing so. No orders were made on 11 August 2022 dismissing the parties’ interim applications – the implication being that they are yet to be determined. The submission that it should be presumed the applications have been dismissed is rejected.
It might have been neater if the primary judge had, on 11 August 2022, made an additional order fixing the date upon which the interlocutory hearing would be resumed, but the absence of such an order does not mean the father was deprived of any reasonable chance to return and finalise the hearing. Procedural fairness is an essential characteristic of any judicial proceeding, but not every departure from the rules of natural justice will entitle the aggrieved party to a new hearing (Stead v State GIO (1986) 161 CLR 141 at 145). Here, the father could, and still can, easily embrace the primary judge’s invitation to resume the interlocutory hearing.
Ground 4
This ground asserts the primary judge erred by “failing to engage”, either properly or at all, with the “legislative pathway”. The complaint is particularised by asserting his Honour failed to deal with the factors prescribed by ss 60CC(2)(a) and 60CC(3)(d) of the Act.
In rejecting this ground, it is first useful to set out some uncontroversial legal principles and then analyse the way in which the case was posited to the primary judge.
In Goode & Goode (2006) FLC 93-286, the Full Court said:
68.… [T]he procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In Banks & Banks (2015) FLC 93-637, the Full Court said:
47.As the Full Court pointed out in [Goode & Goode (2006) FLC 93-286], the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in [Goode & Goode (2006) FLC 93-286] as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
In Phillips & Hansford (No.2) (2019) FLC 93-917, the Full Court said:
43.The various considerations under s 60CC(3) of the Act are not a mantra to be recited in every case. Only those that are in issue in the proceedings require detailed consideration (SCVG & KLD (2014) FLC 93-582). This is particularly so in interim proceedings. We do not see the relevance of this consideration to the short term interim orders made by the primary judge.
Factual and legal concessions, if accepted by the Court, may conclusively deal with factors which the Act requires be considered and, as a consequence, the judgment only then needs to address the contentious factual and legal matters which remain outstanding.
In this instance, the dispute was entirely focussed upon the parties’ reciprocal allegations that the child was at risk of harm in the other’s care. Inevitably then, the primary judge’s reasons specifically addressed the factual issues raised by the parties and it was unnecessary for his Honour to slavishly address each and every factor prescribed by s 60CC of the Act when the parties did not do so.
At the time of hearing before the primary judge on 11 August 2022, the father’s most recent application was contained within his Amended Initiating Application filed on 18 July 2022, within which he proposed an order that the child should live with the mother. The father’s counsel conceded that to be so. Nonetheless, despite the freshness of his application in that form, his counsel initially informed the primary judge the father was contrarily seeking the child’s interim residence, in these terms:
HIS HONOUR: - - - and as I understand it, he is seeking an order that ..... the child live with him.
[COUNSEL FOR THE FATHER]: Yes. He is hoping, your Honour – one of the main issues in this case is the danger that is posed to [the child] from the mother’s partner, Mr A. The father’s hope is that through these proceedings, the parties will eventually reach a time when [the child] can live with the mother and can live with the mother safely and spend time with him, the father. But at the moment, the father says that that’s not possible due to the risk of harm that is posed by Mr A.
(Transcript 11 August 2022, p.2 line 42 to p.3 line 4)
Given the reason advanced to explain why the father sought the child’s interim residence, the primary judge pressed the father’s counsel about the sufficiency of the existing injunction restraining the child’s contact with the mother’s former partner, which the father’s counsel was impelled to admit was sufficient in this way:
HIS HONOUR: … [to counsel for the father], is concerns about Mr A, why isn’t that ..... by continuation of the order restraining any contact between [the child] and Mr A?
[COUNSEL FOR THE FATHER]: Because the father has little faith that the mother will adhere to any - - -
HIS HONOUR: Why do I care about what faith he has? It’s not his decision; it’s mine. Does he have evidence – apart from his faith or intuition or gut instinct – that the mother will disobey an order of this court in relation to contact with Mr A?
[COUNSEL FOR THE FATHER]: There’s no evidence before the court in relation to that.
HIS HONOUR: All right. Well, it will be a difficult submission to make in the absence of evidence.
[COUNSEL FOR THE FATHER]: Yes. Yes.
…
HIS HONOUR: Why isn’t that solved by my order restraining [the child] coming into contact – why isn’t that solved by my order restraining the mother from – preventing [the child] to come in contact with Mr A?
[COUNSEL FOR THE FATHER]: Well, it certainly should. That certainly should do it, your Honour. in respect of the parties’ child
(Transcript 11 August 2022 p.4 lines 29–43; p.30 lines 42–46)
Later, after having made that particular concession during preliminary discussions, and before the hearing properly commenced, the father’s counsel announced the revision of the father’s position, conceding that he only sought interim orders for the child to spend time with him in the terms set out in his Amended Initiating Application, filed on 18 July 2022, as this exchange reveals:
HIS HONOUR: What does your client seek on an interim, interim basis in terms of time?
[COUNSEL FOR THE FATHER]: He seeks the orders, your Honour, that are set out in his amended – it’s an amended, amended initiating application filed on 18 July.
…
HIS HONOUR: - - - so three nights? And, one night in the second week. So it’s four nights in a fortnight. And then, six days at Christmas, six days in January ..... which is a delightful expression of optimism in this case.
[COUNSEL FOR THE FATHER]: It is.
(Transcript 11 August 2022 p.12 lines.42–46; 13.22 to p.13.26)
In respect of the child’s future interaction with the father, the father’s counsel essentially submitted this to the primary judge:
[COUNSEL FOR THE FATHER]: Those are my submissions, your Honour, but essentially, in my submission, there simply isn’t the evidence to impose supervised time which will cause a significant – it’s a significant change in [the child] and his relationship with his father, and it’s a decision if that is to be imposed, that should be based on the evidence and there simply isn’t the evidence to support that. Those are my submissions.
(Transcript p.33 line 44 to p.34 line 2)
At no time did the father’s counsel make any submission at all to engage s 60CC(2)(a) of the Act as a material consideration, so its invocation in the appeal has the appearance of being an afterthought. The mother’s proposal was that the child should spend time with the father each week, albeit supervised, the regularity of which interaction implies she accepted the child derives benefit from a meaningful relationship with the father. The appealed orders reflected her proposal, the implicit premise of which is that the child should remain in regular contact with the father so as to preserve their meaningful relationship. The primary consideration prescribed by s 60CC(2)(a) of the Act therefore assumed a place of prominence, but was necessarily subjugated to the need to ensure the child’s psychological safety (s 60CC(2A)).
As to the materiality of s 60CC(3)(d), the father’s counsel did say supervised time would be a “significant change” for the child, but did not otherwise expressly address the likely effect upon the child of shortening the time he had hitherto spent with the father. The submissions were really directed to the proposition that the evidence did not support curtailment and supervision of the child’s interaction with him. However, his Honour found the evidence established the father posed a risk of harm to the child, justifying such an outcome, saying this in the reasons for judgment:
9.While having those hopes and expectations for the future, I consider that the court must act today to put in place some measures to protect [the child] from particular actions that might occur in the context the intractable conflict between his parents. In particular, I consider it necessary to protect [the child] from the risk of ill-considered behaviour by the father and the way in which the father may deploy communications or use information to achieve the ends he seeks, either directly to get the mother to capitulate or indirectly by way of some more veiled threat. My concern is that such communications or information may be conveyed through or to [the child], or that [the child] will otherwise become aware of the same.
…
20.While I am constrained by the inability to make conclusive findings in relation to contested issues of fact concerning the evidence of threats, denigration, and vilification – that will have to wait until the final hearing – I consider that I’m not able to ignore how all of the evidence suggests a very concerning level of conflict between [the child’s] parents. Nor am I able to ignore that, at times, the father has not been able to restrain his behaviour and has made threats that would drag [the child] into the centre of the battleground between his parents. Furthermore, I feel I cannot ignore the risk that the father will do or say something to [the child], with the goal of retribution against the mother or making her capitulate, that may cause [the child] emotional or psychological harm.
21.How likely is that scenario to occur? Given the evidence I have that over a significant period, but particularly from December last year to April this year, there have been threats of a similar nature but displaying a different, escalating, more intimidatory quality I consider that the chances of it occurring are moderate. In relation to the consequences should it occur, I think the consequences for [the child] could be devastating and cause him significant, long lasting emotional and psychological harm. Again, I acknowledge that the evidence I have on which I formed that view is limited by the interim nature of these proceedings and that a different view might be formed at the conclusion of the final hearing. But until that hearing can occur the risk of that harm to [the child] is not a risk I’m prepared to take. In those circumstances, I consider that I must put in place a number of measures to protect [the child] – they will include limiting the time that [the child] spends with his father, requiring supervision of that time, and making injunctive orders that would prevent the father from having contact with [the child] outside of the supervised time arrangements.
This ground is without merit.
Ground 3
This ground contends the primary judge “erred in the assessment of risk in ordering supervised time”. It is contended the error is evident by three failures: the failure to take material considerations into account; the failure to consider alternatives to supervised time; and the failure to impose injunctions upon the father to mitigate the risk.
Immediately, it will be apparent that this ground of appeal tends to conflate complaints about two separate things: first, the validity of the finding that the father poses a risk of harm to the child; and secondly, the validity of the decision by the primary judge to attenuate such risk by imposing supervised time.
In respect of the alleged risk of harm posed by the father, his counsel submitted the factual evidence relied upon by the mother was somewhat historic and emphasised how, despite her becoming aware of misconduct by the father in January 2022, she did not report it to the police until May 2022 and did not raise it within the proceedings until August 2022. So much is true, but those circumstances were expressly considered by his Honour (at [10]–[18]), meaning the complaint of those material considerations not being taken into account is baseless.
The risk of harm to the child was explicated by the primary judge (at [20]–[21]). In submissions, the father’s counsel had suggested that such risk should be addressed this way:
[COUNSEL FOR THE FATHER]: … but it would be my submission as well that your Honour could make a mutual non-denigration order which would take care of that.
(Transcript p.28 lines 28–29)
The reasons for judgment disclose his Honour found the father “has not been able to restrain his behaviour”, so such impulsivity was unlikely to be quelled by an injunction requiring him to rationally decide to abstain from behaviour he had demonstrated an incapacity or unwillingness to moderate by rational decision. The primary judge said the repetition of such behaviour by the father was liable to be “devastating and cause [the child] significant, long-lasting emotional and psychological harm”, the risk of which harm was “not a risk [his Honour] was prepared to take”.
The primary judge concluded the only measures which could satisfactorily mitigate the risk of harm to the child were to limit the time he spends with the father, require their supervision, and restrain the father’s contact with the child outside such supervised visits. The reasons for judgment are not stripped of either sufficiency or cogency by the omission of the primary judge to expressly state that the “non-denigration” injunction, informally posited by the father’s counsel as an idea during submissions and which was not part of the father’s formal application, would not be enough to attenuate the risk. This ground fails.
Ground 2
This ground alleges the primary judge erred by making injunctions “without proper basis”.
The injunctions to which the ground is directed are those embodied in Orders 2 and 5 in these terms:
2.For the personal protection of the mother [name and date of birth] 1980 and the child [name and date of birth] (“the protected persons”), the father be restrained by injunction pursuant to s 68B from:
(a)approaching the child’s preschool or school or collecting the child from the child’s preschool or school.
(b)approaching or coming within 100 metres of the mother’s place of residence.
(c)approaching or coming within 50 metres of the mother, save and except for the purposes of facilitating changeover in accordance with any Orders made by the Federal Circuit and Family Court of Australia.
…
5.The father is restrained from doing or permitting any act or thing that would cause the child to spend time with him or communicate with him other than in accordance with the orders herein.
In support of this ground, the father’s counsel submitted:
26.The s 68B injunctions are an impost on the father’s liberty and it is well-established that the consequences for breach of an injunction are serious. It flows that such orders should not be made lightly or without proper basis.
27.In his reasons His Honour fails to provide any basis for the making of the orders. …
(Father’s Summary of Argument filed 2 November 2022)
The father’s objection to the injunctions for which the mother applied was articulated by his counsel to the primary judge in this way:
[COUNSEL FOR THE FATHER]: Well, the orders as sought by the mother, she seeks urgent injunctions to prevent the father from coming within 50 metres or 100 metres, but there’s no evidence that he has attempted to do that. …
…
[COUNSEL FOR THE FATHER]: It is, but there’s no evidence that the father has carried out any threat that he made apparently in January of this year.
HIS HONOUR: ..... but the point is on a protection – in an interim/interim basis, he has made threats and has posted them publicly. It seems a very unwise course to take.
[COUNSEL FOR THE FATHER]: Certainly. Certainly, your Honour, there is no doubt about that.
…
[COUNSEL FOR THE FATHER]: I accept that, but the court cannot ignore the fact that the father has not approached the mother. He has not acted on any of those threats. Since – there is no doubt that those videos are inappropriate. They were posted in January. …
…
HIS HONOUR: … I’m just dealing first of all with the 68B section ..... an injunction. Does the father need to come near the mother?
[COUNSEL FOR THE FATHER]: No.
HIS HONOUR: Well, what would the injustice be if I made a 68B on an interim/interim basis to protect the mother in terms of the father approaching her place of residence, or wherever is her place of work or …
[COUNSEL FOR THE FATHER]: There wouldn’t be, your Honour.
…
HIS HONOUR: All right. So unless there’s something else you want to tell me in that regard, on behalf of the father, I do intend to make on an interim/interim basis an order pursuant to section 68B because of the protection of the mother, and those orders will be that the father would be restrained by an injunction from approaching or coming within a certain distance of the mother’s place of residence, and from otherwise approaching the mother. Now, it’s not in relation to distance. …
(Transcript 11 August 2022, p.19 lines 34–36; p.20 lines 1–8; p.20 lines 20–22; p.22 line 39 to p.23 line 1; p.23 lines 29–34)
(Emphasis added)
It hardly need be said but, after the father’s admission of threatening the mother, it would have been surprising if the primary judge had been re-assured by the submission that he had not yet physically acted upon the threats.
The father having conceded he would suffer no prejudice by acquiescence to the injunctions, the primary judge then turned to consider the radial distances which the injunctions would cover. In that regard, the father’s counsel told the primary judge:
[COUNSEL FOR THE FATHER]: That’s fine. Then I would say that the distances provided in the mother’s injunction would be appropriate.
(Transcript 11 August 2022, p.25 lines 20–21)
(Emphasis added)
In light of the father’s concessions to the primary judge about the proposed injunctions, the maintenance of this ground of appeal was puzzling. The father can have no complaint with orders to which he effectively submitted, so this ground fails.
Disposition
The appeal is dismissed.
The mother sought an order for costs against the father in the sum of $13,714.70 on the basis that the appeal was wholly unsuccessful. The father opposed the costs application on two bases. First, he said the appeal concerned “important elements of principle”, particularly concerning procedural fairness. The submission is rejected. Second, he said that he must meet the cost of the child’s supervised visits with him, which drains his available resources. That may be true, but it does not demonstrate his financial circumstances are such as to preclude a costs order against him. He saw fit to spend $16,499.92 on his own costs and disbursements in the appeal, so it may be supposed he has access to funds sufficient to meet the mother’s costs. The order is made in the mother’s favour.
The ICL did not seek any costs order.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 20 December 2022
0
3
0