MADDAX & DANNER
[2019] FamCAFC 38
•5 March 2019
FAMILY COURT OF AUSTRALIA
| MADDAX & DANNER | [2019] FamCAFC 38 |
| FAMILY LAW – APPEAL – PARENTING – Where final orders were made in February 2016 – Where the father subsequently withheld the child in Germany – Where the mother initiated Hague Convention proceedings – Where the child was returned to the mother three months after proceedings were initiated – Where the mother and child returned to Australia in April 2017 – Where the father returned to Australia 13 months later – Where the father filed a contravention application within two months of his return to Australia – Where that application asserted over one hundred contraventions including the mother failing to provide face to face time when she and the child lived in Australia and the father continued to live in Germany – Where the primary judge adjourned the proceedings and ordered that a family report be prepared – Where the primary judge suspended the father’s contact with the child – Where the father had not seen the child in 19 months – Where the primary judge prohibited the parties from filing any further contravention applications or applications in a case until the matter returned to court – Whether the primary judge erred in failing to deal with the contravention application before the substantive parenting proceedings – Where no substantial injustice was established – Where the father’s grounds of appeal were without merit – Application for leave to appeal dismissed – Appeal dismissed. |
| Family Law Act 1975 (Cth) pt XIIIA, Div. 12A, 13A, ss 60CC, 62G, 65DAA, 69ZN(6), 69ZN(7), 69ZQ, 69ZX(3), 70NBA(1), 70NFA, 112AP Federal Circuit Court Rules 2001 (Cth) Pt 19 |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Caballes & Tallant (2014) FLC 93-596; [2014] FamCAFC 112 Danner & Maddax [2016] FCCA 68 Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346 Kettle & Baker [2014] FamCAFC 85 Kovacs & Graham [2015] FamCAFC 98 Stradford & Stradford (2019) FLC 93-888; [2019] FamCAFC 25 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Vanzin & Vanzin [2014] FamCAFC 245 |
| APPELLANT: | Mr Maddax |
| RESPONDENT: | Ms Danner |
| FILE NUMBER: | BRC | 5778 | of | 2014 |
| APPEAL NUMBER: | NOA | 102 | of | 2018 |
| DATE DELIVERED: | 5 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 21 January 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3523 |
REPRESENTATION
| THE APPELLANT: | In person (via telephone) |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Sarah Cleeland Family Lawyers |
it is ordered:
The application for leave to appeal order 3 of the Orders of Judge L Turner made on 6 November 2018 is dismissed.
The appeal from the balance of the Orders of Judge L Turner made on 6 November 2018 is dismissed.
Each party shall bear their own costs of and incidental to the application for leave to appeal and the appeal.
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 Maddax & Danner 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 102 of 2018
File Number: BRC 5778 of 2014
| Mr Maddax |
Appellant
And
| Ms Danner |
Respondent
REASONS FOR JUDGMENT
The father of the child X, who is now aged nine, appeals interim orders made by Judge L. Turner on 6 November 2018. Her Honour’s reasons for those orders were given on 30 November 2018.
The father had applied for orders that the mother be dealt with for contravention of existing parenting orders. That application was not dealt with substantively. Rather, her Honour ordered the application be adjourned for approximately 16 weeks until 6 March 2019, at the same time ordering a family report pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”).
For her part, the mother sought significant variations to existing parenting orders made in February 2016. As will be seen, much had happened in X’s life in the almost three years since those orders were made after a trial. Obviously enough, the ordered s 62G report was also directly relevant to the mother’s application. In circumstances to be referred to shortly, the father had not seen X since April 2017. For approximately 13 of the 19 months between that date and the hearing before her Honour, the father resided in Germany (the country of his and X’s birth) while the mother and X lived in Australia.
Pending the return of the proceedings before her, 16 weeks hence, her Honour ordered that the existing order for face to face time between X and her father be suspended. The existing order for regular Skype/telephone communication remained unaffected by her Honour’s orders. In addition, her Honour ordered that neither party “is permitted to file any further Contravention Applications or Applications in a Case in this matter”. The challenge to that order requires leave to appeal.
The father represents himself in this appeal and, at his request, was permitted to appear by telephone. The father prepared his own material. With all respect to him, the grounds of appeal, the facts upon which his application for leave to appeal are based and his summaries of argument contain matters not recognisable as proper grounds of appeal and material which is irrelevant.
Before dealing with those grounds and arguments, it is important to point out the following matters by way of overarching context:
·Her Honour’s decision was informed by a troubling history of conflict between X’s parents which, of course, had a significant impact upon her. That history of conflict, shortly to be outlined, included the mother unilaterally ceasing time between the father and X contrary to agreed arrangements; the father refusing to return X to the mother after a period of time contrary to orders and the father refusing to return X after a holiday in Germany as he had promised to do, also contrary to existing orders;
·The parties’ respective applications were heard in a busy duty list. Thirty-six matters were vying to be heard;[1]
·The nature of the inquiry into what parenting orders were in X’s best interests was a “truncated” inquiry centred on uncontroversial facts and in which findings could not be made upon significant disputed facts.[2] The parties’ respective contentions had, at their heart, significantly conflicted assertions;
·The relevant inquiry was as to the orders which were to pertain for a period of approximately 16 weeks until the matter returned before her Honour. It seems plain that her Honour expected that at the next hearing the ordered s 62G report would be available;
·There was no doubt that circumstances had changed materially since the existing orders were made. So much was obvious from the history, shortly to be discussed, to which her Honour also referred;
·The father had not spent face to face time with X for about 19 months;
·The father’s contravention application had been twice adjourned (albeit that on the latter of those two occasions the adjournment occurred because the mother argued, correctly, that the contraventions were not particularised sufficiently so as to allow her to respond).[3]
[1] Reasons at [25].
[2] Vanzin & Vanzin [2014] FamCAFC 245 at [17]–[22]; Banks & Banks (2015) FLC 93-637 at 80,116; Goode and Goode (2006) FLC 93-286 at 80,901.
[3] Proceedings before Judge Jarrett on 18 October 2018.
The Grounds Of Appeal As Drafted
The father’s grounds of appeal should be quoted in full as they appear in his Notice of Appeal filed 15 November 2018:
1.Error in finding of facts by Judge L. Turner, due to her failure to properly examine the documents provided by the father.
2.Incorrect exercise of discretion by Judge L. Turner, to her failure to give proper consideration to the evidence and facts provided from the father’s side.
3. Judge L. Turner erred applying the wrong principle of law.
4.Procedural error by Judge L. Turner in failing to deal with the Application Contravention and matters raised therein.
(As per original)
The Notice of Appeal also sets out the facts by which it is asserted leave to appeal should be granted. The first such matter refers to provisions of the Act relating to X’s best interests. Those matters are not relevant to leave; the father appeals interim parenting orders as of right. Otherwise, reference is made to Articles in international Conventions.[4] Again, they have nothing to do with the order in respect of which leave is needed.
[4] The Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980); The Universal Declaration of Human Rights (10 December 1948); The Convention on the Rights of the Child (2 September 1990).
The father in fact advances no relevant facts or arguments in respect of leave to appeal – which is required in respect of the order preventing the filing of further applications. I will nevertheless deal as best I can with the issue of leave and the challenge to that order below. The father appeals all orders made by her Honour. That includes the order requiring him to file a Response. He filed that response on the same day he filed his Notice of Appeal. I have assumed he does not intend to appeal that order.
An Amended Summary of Argument filed on 15 January 2019 cites “Denial of Procedural Fairness” as, apparently, an additional ground. The Amended Summary of Argument is a discursive document and, with all due respect to the father, difficult to understand in some parts.
At its heart, much of the father’s argument turns on what he refers to as the “parental alienation practices” of the mother. In short, he asserts that the mother is intentionally seeking to deny him time with X and is actively undermining his relationship with her.
The mother asserts, in effect, that time with the father is not in X’s best interests and that if unsupervised face to face time was ordered, the father is a flight risk.
Failure to Examine Documents
It would appear that the father’s central assertion just referred to is also at the heart of the asserted failure to take account of relevant documents referred to in Ground 1.
Reference is made to a named “[i]nternist and medical educator who was involved in an international parental alienation study”. It cites a YouTube website reference for the content contained within the summary. To similar effect an “Associate Professor of Social Work at the University of British Columbia” is cited. Again, the citation is to a website; “psychologytoday”.
Whatever else might be said about this “evidence” and its relevance (or admissibility otherwise) the father conceded before me that none of the material referred to was before her Honour and no mention was made of it by his then counsel. Ground 1 should be dismissed accordingly (To the extent that the documents to which Ground 1 refers consist of documents other than those just mentioned, the challenge is embraced by Ground 2).
International Conventions – Grounds 3 and 4
The summary of argument refers at some length to the provisions of international Conventions to which Australia is a signatory. The relevant Articles within those Conventions are applicable in Australia only in so far as legislated into Australian law.
Grounds 3 and 4 and, more broadly, the arguments asserting procedural unfairness or failure to take account of relevant considerations by reference to them should be dismissed accordingly.
It is not entirely clear how it is said that her Honour “erred in applying the wrong principle of law”; certainly the Ground is not otherwise particularised. In fairness to the father, I will take the challenge as being to the exercise of her Honour’s discretion in applying the relevant provisions of Part VII of the Act and deal with that later in these reasons.
Procedural Unfairness
The only assertion of procedural unfairness (which is not a ground of appeal but part of the father’s summary of argument) is that he was not granted legal aid whereas the mother was granted such aid.
However unfair the father perceives that to be and, indeed, however unfair it may be in fact, it is not of itself a matter attracting the intervention of this Court. It is necessary for the father to establish a procedural irregularity or procedural unfairness said to flow from the hearing before her Honour before the intervention of this Court is warranted. No such contention is made or established here.
The Central Challenges
In essence, the father’s challenge to her Honour’s order dealing with his contravention application is a challenge to an order for adjournment. An order for adjournment is a procedural order and quintessentially discretionary. No specific discretionary error is asserted in respect of her Honour’ order.
However, the father’s argument seems to suggest that adjourning his contravention application involved an error of principle. The contention appears to be that her Honour was bound to deal with his contravention application on that day and, it seems, in priority to any other application. More broadly, the father asserts that her Honour failed to consider his evidence and, specifically, the mother’s “parental alienation practices” in making the parenting orders that her Honour did.
The father does not specifically address her Honour’s order preventing either party from filing any contravention application or application in a case, but I will nevertheless refer briefly to the same.
Notwithstanding that this is an appeal from an interim decision designed to pertain for about 16 weeks until the next ordered return date, I think it is important to outline the history of conflict given its prominent place in her Honour’s consideration.
Her Honour was plainly alive to the appalling history of parental conflict in this matter which had impacted upon X; her Honour’s reasons briefly summarise that history.[5] That conflict in turn impacted upon her decision to order a s 62G report as did the centrally important fact that X had not seen her father for about 19 months.
[5] Reasons at [8]–[14].
The History Of Parental Conflict
Agreed co-parenting arrangements consequent upon the parties’ separation in March 2013 broke down at the end of January 2014. X was almost four years old. Those arrangements ended upon the mother unilaterally ceasing the erstwhile regular time which the father had been spending with X.
A subsequent agreement reached at a family dispute resolution centre broke down in July 2014 when the father unilaterally refused to return X to the mother’s care. Interim orders were subsequently made on 22 July 2014 that provided for X to live with the mother and spend time with the father from 3:00 pm Monday until 9:00 am Wednesday each alternate week until August 2014 of that year when X’s time would change to: from Friday 5:00 pm to before school care on Monday each alternate week.
The trial occurred in October 2015 with final parenting orders being made by Judge Coker on 12 February 2016. Those orders provided for X to live with her mother who assumed sole parental responsibility for all long term decisions in relation to her. The father was to spend time with X each alternate weekend from after school Friday until before school Monday (or Tuesday if Monday was a public holiday) and for one half of all gazetted school holiday periods. The subsequent orders and, in particular, seven orders made under the heading “Other Orders” are particularly illustrative of the extent of the ongoing conflict between X’s parents.[6]
[6]Danner & Maddax [2016] FCCA 68.
In the approximately 10 months since those orders were made, the following litigation, all pertaining to parenting issues, occurred:
·The father appealed the final parenting orders made by Judge Coker.
·The father applied to stay the orders made by his Honour. The stay was refused and the father appealed that refusal.
·In May 2016, approximately three months after the making of the final orders the father applied for new parenting orders. On 30 June 2016 that application was dismissed summarily and the father was restrained from filing any further Initiating Applications pending the outcome of his appeal.
·The father appealed those orders. That appeal and the earlier appeal were heard together on 3 August 2016 and dismissed on 5 September 2016.
·The father sought special leave from those orders. Special leave was refused.
·The Full Court made orders with respect to the costs of the appeals. The father sought special leave to appeal that decision. The High Court refused special leave on 14 December 2016.
On 1 January 2017, the father travelled to Germany with X who, at that time, was approaching her seventh birthday. The father had obtained the mother’s permission for that trip and promised to return X to the mother three weeks later on 22 January 2017.
The father failed to return the child, cancelling his flights back to Australia four days before he and X were due to return.
The father’s refusal to return X to the mother’s care provoked an application by her pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). Interim orders were made by a German Court in February 2017, with final orders being made in March 2017. Those orders required the father to return the child to the mother and that the father spend supervised time with X. The father never availed himself of that time.
Section 69ZX(3) of the Act permits a Court to “adopt any recommendation, finding, decision or judgment of any court”. With that in mind, the affidavit of the mother annexes translations of findings from the German Court hearing the Hague Convention application as follows:[7]
During the personal encounter of the child and the guardian ad litem in preparation of the court hearing, the guardian ad litem noticed that the child instantly said, when being reunited with the mother, that she wanted to stay in Germany. During the course of the conversation, however, this was not an issue anymore. The child even asked when the birthday party was going to take place in Australia and who she could invite.
[7] German Reasons, 13.
The German Court went on to say:[8]
The medical statement of the child and adolescent psychiatrist [Dr O] submitted by the father is also not opposed to the return. The doctor does not in any way address the issue whether or not the will of the child is autonomous. The report only relies upon the unilateral statements of the father. The psychiatrist only saw the child twice in the presence of the father after the father had placed the child in the difficult conflict situation with fears of loss and wrongfully retained the child from the mother. The behaviour of the child in the presence of the father during the medical appointment does not correspond with the behaviour of the child displayed towards the mother, who is presently in Germany, and the guardian ad litem. Even in court, the child did not behave as claimed by the father.
…
The doctor is obviously not aware of the father’s criminally relevant retention of the child and the fact that he was on the run within Germany with the child and was hiding the child. The description regarding the family and development in his statement is a one sided presentation from the view of the father.
[8]German Reasons, 13–14.
A further process of appeals at the suit of the father then ensued in Germany. His initial appeal was first heard by a Regional Court. Within those proceedings the father sought an order for an injunction preventing the mother and child from returning to Australia. That appeal was unsuccessful and the father was ordered to pay costs. On 13 April 2017 the father filed a further appeal. That appeal was dismissed on 18 April 2017. The father attempted to further appeal that decision to the High Court of Germany, but that attempt was unsuccessful.
The mother and X returned to Australia on 18 April 2017. X had missed the first term of schooling by reason of the events in Germany just described. The father returned to Australia approximately 13 months later in May 2018.
Within two months of the father’s return to Australia he filed a contravention application (on 4 July 2018) listing numerous asserted contraventions against the orders of 12 February 2016. It might be observed that, in a number of the asserted contraventions, the father asserted the mother had contravened the order by failing to provide X for face to face time when she and the mother lived in Australia and the father continued to live in Germany.
The father also filed an application for a location order in order to determine the whereabouts of the mother. On 23 August 2018 the father filed an enforcement application in relation to the 12 February 2016 orders. The contravention application and enforcement application were mentioned in Court on 15 October 2018 before Judge Jarrett.
His Honour adjourned the applications to 18 October 2018. The father refers to what was said by his Honour during the course of those proceedings, consequent upon indicating the date “for the hearing of the contravention application”. His Honour asked whether the mother was complying with the orders. He was told that she was not.[9] In doing so her counsel indicated to his Honour that “she should have filed [an application to vary the orders] prior to today’s date”. Counsel then sought to “perhaps, give your Honour some background in relation to this matter” to which his Honour responded “No”.[10] His Honour then said:[11]
All I’m interested in is when she’s going to start complying with the orders, given that (a) there are orders in place, (b) she’s not complying, and (c) she has no extant application.
[9] Transcript 18 October 2018, p. 5 lines 13–21.
[10] Transcript 18 October 2018, p. 5 lines 20–36.
[11] Transcript 18 October 2018, p. 5 lines 38–40.
Significantly, in respect of the last of those comments, counsel responded: “[s]he, does in my submission”[12] referring to a response to the applicant’s application that had earlier been filed by the mother. This exchange then occurred:[13]
[MOTHER’S COUNSEL]: In terms of when she will comply with the order, I don’t have instructions with respect to that, your Honour.
HIS HONOUR: I see. On the next occasion, I intend to deal with her for contempt.
[12] Transcript 18 October 2018, p. 5 lines 42–43.
[13] Transcript 18 October 2018, p. 6 lines 5–8.
The Hearing Before The Primary Judge And Her Honour’s Reasons
Against the background just referred to, the matter was listed in her Honour’s duty list. Her Honour summarised the proceedings before her as follows:[14]
21.In October 2018 the father was ordered to file an amended contravention application by 25 October 2018 and the contravention was listed for hearing on 6 November 2018.
22.In October 2018 the mother filed an initiating application seeking a no spend time with order for the father and for the father to be prohibited from instituting any further proceedings against the mother.
23.On 1 November 2018 the father filed an amended contravention application seeking over one hundred contraventions, many of which relate to when the father was not in Australia.
24.In November 2018 the mother filed a contravention application against the father.
(As per original)
[14] Reasons at [21]–[24].
It is important to again emphasise that her Honour was aware of the history to which reference has just been made. It was summarised in her Honour’s reasons and her Honour specifically referred to the fact that counsel, then representing each of the parties, “quickly and concisely, informed the Court as to the history of the matter”.[15]
[15] Reasons at [26].
Her Honour’s orders, made in the truncated context earlier described, were founded on the need for a family report to inform the Court of matters central to X’s best interests.[16] No error is identified in that respect. The decision to order the family report was, with respect, plainly correct.
[16] Reasons at [30]–[36].
The need for the family report so as to inform both the contravention applications and the applications for parenting orders was in turn founded on the fact that X had not seen her father for some 19 months within the context of competing assertions from the parties which underpinned that time frame. With that in mind, the decision to suspend the father’s time for a period of 16 weeks pending the further mention and family report was informed by the following paragraphs of her Honour’s reasons:[17]
41. The father has not seen the child since early 2017.
42.The father previously refused supervised time with the child when such time was offered in 2017.
43.Much has happened for the child since being returned to the care of the mother in early 2017, including resettling in Australia and recommencing school after missing the first term.
44.I make this order as to suspension of the father’s time as the court needs the benefit of the family report before consideration can be given to the future spend time with arrangements for the father and the child.
[17] Reasons at [41]–[44].
The Adjournment Of The Contravention Application
There is a widely-held view that contravention applications must be dealt with prior to any other proceedings before the Court. That view emanates, I think, from a time prior to the introduction of Division 13A of Part VII of the Act.
That substantial amendment to the Act introduced an entirely new regime dealing with “Consequences of failure to comply with orders, and other obligations, that affect children”. Division 13A of the Act is to be contrasted with Part XIIIA of the Act and the latter’s focus on “sanctions”.
Division 13A falls within Part VII of the Act which has the consequence that Division 12A applies to Division 13A proceedings. That has important consequences for the instant challenge. Further, the provisions within Division 13A can be seen as de-emphasising sanctions in cases which do not involve “serious disregard of [a party’s] obligations under the primary order”[18] in favour of seeking to address difficulties in existing parenting orders and how they might be addressed in new or varied parenting orders. That can be seen exemplified in s 70NBA(1)[19]:
[18]Family Law Act 1975 (Cth) (“the Act”) s 70NFA.
[19] Compare Sub-division E and Sub-division F. More broadly, the provisions contained within Division 13A of Part VII should be compared and contrasted with the provisions contained within Part XIIIA of the Act.
Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
It will be observed that an inquiry into the variation of parenting orders can take place irrespective of whether a contravention is established or not. That is in my view important. It places the best interests of children as central not only to parenting orders but also to a consideration of how asserted or established contraventions might be dealt with.
The Full Court decided Kettle & Baker[20] subsequent to the introduction of Division 13A. There the Full Court referred to what was said by Forrest J during the trial in the decision under appeal:[21]
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…recently, okay, in a matter very much like this… in any event, I consider that contravention proceedings, being under division 13A, fall under – they are Part VII child-related proceedings.
… 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…
[20] [2014] FamCAFC 85 (“Kettle”).
[21]Kettle at [40].
The Full Court said of that passage:[22]
There is no error in what his Honour has said in the above passages such as would call for our interference with his decision.
[22]Kettle at [41].
The decision in Kettle has been cited with approval in Kovacs & Graham[23] where the Full Court held that contravention proceedings are, as the Court held in Kettle, Part VII child-related proceedings and that consequently the Court has conferred upon it the powers under Division 12A of the Act.[24] In that respect, specific reference might be made to s 69ZN of the Act and in particular the fourth and fifth principles set out in s 69ZN(6) and (7):
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
[23] [2015] FamCAFC 98 (“Kovacs”).
[24]Kovacs at [27]. See, also, the discussion in Caballes & Tallant (2014) FLC 93-596 112 per Kent J at 79,377.
The powers given to the Court in applying those principles are referenced as mandatory duties contained in s 69ZQ. In particular the Court must “decide which of the issues in the proceedings require full investigation and hearing and which may be disposed of summarily” and “decide the order in which the issues are to be decided”.[25]
[25] The Act s 69ZQ(1)(a)–(b).
The assertion by the father that her Honour erred, as a matter of principle, by adjourning his contravention application must be rejected.
Similarly, the assertion that, as a matter of principle, the contravention application must have been heard before any parenting or other orders could be made must also be rejected. The Court was empowered to vary the existing parenting orders irrespective of whether the contravention application was heard or adjourned and irrespective of whether the asserted, or any, contraventions were made out.
Is There Discretionary Error?
The New “Evidence”
The asserted error in failing to take account of what is said to be relevant “evidence” obtained from the internet, and not put before her Honour in any form, has already been dealt with.
Failure to Take Account of Earlier Reasons
Although not framed in recognisable discretionary error, the father asserts, in effect, that the primary judge failed to take account of what is, in effect, asserted to be a relevant consideration, namely comments made by Judge Jarrett at the mention before his Honour on 15 October 2018. The relevant passage upon which the father relies has already been quoted.
The application before his Honour was for summary dismissal arising from an asserted lack of particularity in the contravention application. His Honour accepted that assertion but, rather than dismissing the application, provided the father with an opportunity to, as it were, re-plead the particulars of his asserted contraventions. Having determined the summary dismissal application before him, it is by no means clear to me that any other issue arose for his Honour’s determination.
Be that as it may, the reference by his Honour to dealing with the mother for “contempt” cannot, with all respect, be correct.[26] It is difficult to see any possible basis upon which any such comment could have been made. As I have earlier sought to explain, “contempt” is a matter quite distinct from an asserted failure to comply with parenting orders, the latter being governed by the specific provisions in Division 13A of Part VII of the Act. On the face of the record, I am quite unable to see how any “contempt” could be alleged.
[26] See Stradford & Stradford (2019) FLC 93-888.
Thirdly, his Honour’s comment that the mother would be “dealt with” for contempt suggests pre-judgment. The mother could only be “dealt with” for contempt if the specific procedures in the Federal Circuit Court Rules 2001 (Cth) had been complied with.[27] At least at face value, as a result of the matters just discussed, if his Honour was purporting to make a finding of “contempt” (or even “contravention”), it can only have been on the basis of impermissible pre-judgment.
[27] The Act s 112AP; Federal Circuit Court Rules 2001 (Cth) pt 19. See also Stradford & Stradford (2019) FLC 93-888.
Finally, and in any event, it is by no means clear that his Honour was aware of any of the history to which reference has earlier been made.
Leaving aside the, with respect, inappropriateness of his Honour’s comment, in no sense could it have bound her Honour and nor, for the reasons just given, was it a relevant consideration in the exercise of her Honour’s discretion.
The Failure To Take Account Of The German Letters
A second and related matter is the specific assertion by the father that her Honour failed to take account of letters purportedly written by a Ms Q, the guardian ad litem in the Hague Convention proceedings in Germany. The relevant letters were annexed to the father’s affidavit filed 11 October 2018 which was before her Honour.
The provenance of those letters is interesting to say the least. In her affidavit, the mother had annexed emails passing between the father and Ms Q. In essence, the emails have the father accusing Ms Q of being friends with, or friendly to, the mother and accusing Ms Q of, in effect, undermining the father’s case in the Hague Convention proceedings. The father accused Ms Q of being “guilty of the psychological and emotional rape of [X]”. Each of those emails was translated and bore a certification to that effect.
The letters annexed to the father’s affidavit are addressed to the Attorney-General’s Department in Canberra in September and October 2018. Broadly described, the letters see Ms Q advocating on the father’s behalf. In one, Ms Q advises the father to contact the “Federal Ministry of Justice Department International Custody” so as to facilitate contact between the father and X. The letters purportedly from Ms Q do not refer to her involvement in the Hague Convention proceedings. The letters do not, on their face, refer to being translated and bear no certification to that effect.
It is difficult if not impossible to reconcile the contents of the untranslated letters upon which the father relies with the translated and certified emails upon which the mother relies. Whatever else might be said or thought about that apparent anomaly, the differences do not speak of uncontroversial or inherently reliable evidence that might be relied upon as informing the relevant discretions. It is true that her Honour did not refer to the letters, but nor did her Honour refer to the emails to which reference has just been made.
There is no merit in an assertion of discretionary error arising from the asserted failure to take the letters into account.
Discretionary Error Otherwise?
No discretionary error is otherwise pleaded or established. The highest the father’s case could be put is that her Honour gave insufficient weight to his evidence. The difficulties confronting appellants in challenging the attribution of weight are well established by decisions of the High Court and the Full Court of this Court. Those considerations can be seen to be all the more true of challenges to interim decisions which, by their nature, do not depend upon a full factual inquiry nor findings in respect material factual disputes.
Here, the evidence of both parties was indicative of the conflict that had marked their post-separation co-parenting relationship which, in turn, impacted X. Their assertions and counter-assertions were starkly opposed. Her Honour could not decide those central factual disputes and nor, in the absence of findings, could her Honour attach more weight to one party’s case or the other.
Her Honour did not do so. Rather, her Honour proceeded on the undisputed evidence as to the parental conflict and the length of time since X had seen her father and determined to better illuminate X’s best interests by obtaining a family report.
No discretionary error is established.
Error Of Law Otherwise?
The asserted error is that “Judge L. Turner erred applying the wrong principle of law”. Save for specific asserted errors relating to her Honour adjourning the contravention application rather than determining it and the erroneous assertions founded in international Conventions, it is by no means clear what legal error is asserted.
Her Honour was not bound to consider s 65DAA; the existing order provided that the mother have sole parental responsibility and was undisturbed by her Honour’s orders.
Her Honour did not proceed seriatim through s 60CC. Again, by reason of the circumstances of this case earlier discussed and the 16-week period during which it was contemplated the orders would apply, her Honour did not need to.[28] The considerations relevant to her Honour’s decision, focussed plainly on X’s best interests are readily apparent.
[28] See, Banks & Banks (2015) FLC 93-637 at 80,116; Vanzin & Vanzin [2014] FamCAFC 245 at [22]; Goode and Goode (2006) FLC 93-286 at 80,901; Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18.
No error of principle is apparent.
The Order Preventing Further Applications Being Filed
Neither specific grounds nor specific submissions are directed to challenging her Honour’s orders preventing the filing of further applications by either party.
The reasons for her Honour’s order are plain. In the 16-week period between the instant hearing and the next, her Honour did not want X to be exposed indirectly to further conflict. Further, the history of the matter suggested that the issues remaining to be determined would be further obscured by yet further assertions and counter-assertions.
In that respect, it should be pointed out that her Honour’s orders were directed to the filing of applications in a case (that is, applications seeking interim orders ahead of any trial) and contravention applications. Her Honour said:[29]
37.Given the history of filings in this matter, I further direct that the parties not file any further contravention applications or applications in a case in the interim.
38.Queens Counsel indicated to the court that the “father will file a response to the application and that’s all”.
(As per original)
[29] Reasons at [37]–[38].
The father filed that Response material on 15 November 2018. His submissions, advanced through his Queens Counsel, indicated clearly to her Honour that no foreshadowed prejudice would be suffered if the order was made. The mother made no submissions opposing the proposed order.
The terms of the order, as expressed, suggest an order that has too wide a compass. However, the 16-week time frame earlier referred to is important. The order was made so as to attempt the orderly determination of proceedings already instituted which already had sufficient complexity.
No error is demonstrated.
No error of principle or substantial injustice is established. Leave to appeal should be refused.
Conclusions And Orders
The appeal should be dismissed. The application for leave to appeal should be dismissed.
The mother is legally aided. She does not seek costs. An order will formally be made that each party shall bear their own costs of and incidental to the appeal.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 5 March 2019.
Associate:
Date: 5 March 2019
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