MAFFLE & SEGAL
[2018] FamCAFC 36
•26 February 2018
FAMILY COURT OF AUSTRALIA
| MAFFLE & SEGAL | [2018] FamCAFC 36 |
| FAMILY LAW – APPEAL – PARENTING – Where the appellant seeks leave to appeal an order made by the trial judge granting leave to the respondent for the proceedings to be heard on an undefended basis – Where the appellant failed to comply with orders in circumstances where he was on notice that if he did not comply with those orders the trial would proceed undefended – Where the order of the trial judge is not attended by any or any sufficient doubt to warrant reconsideration by the Full Court – Where refusing leave would not result in substantial injustice – Where there is no merit in the appeal against the order of the trial judge that the appellant spend no time or communicate with the children – Where the trial judge provided ample reasons for his decision and did not err by failing to take into account the matters raised by the appellant – Leave to appeal refused and the appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks her costs – Where the appellant opposes such an order primarily because of his poor financial circumstances – Impecuniosity is not a bar to an order for costs being made where, as here, there are circumstances that justify it – Costs ordered as sought by the respondent. |
| Family Law Act 1975 (Cth) s 117(2) |
| D & D (Costs) (No. 2) (2010) FLC 93-435 |
| APPELLANT: | Mr Maffle |
| RESPONDENT: | Ms Segal | ||||
| FILE NUMBER: | MLC | 4574 | of | 2015 | |
| APPEAL NUMBER: | SOA | 101 | of | 2016 |
| DATE DELIVERED: | 26 February 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 August 2016 |
| LOWER COURT MNC: | [2016] FCCA 2125 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Whitchurch |
| SOLICITOR FOR THE RESPONDENT | Macgregor Barristers & Solicitors |
Orders
The application for leave to appeal paragraph (1) of the order made by the trial judge on 18 August 2016 be dismissed.
The appeal against paragraph (5) of the order made by the trial judge on 18 August 2016 be dismissed.
The father pay the mother’s costs of and incidental to the application for leave to appeal and the appeal with such costs to be assessed in default of agreement.
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 Maffle & Segal 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).
|
Appeal Number: SOA 101 of 2016
File Number: MLC 4574 of 2015
| Mr Maffle |
Appellant
And
| Ms Segal |
Respondent
REASONS FOR JUDGMENT
Introduction
Having been given an extension of time to file a Notice of Appeal, on 30 May 2017 Mr Maffle (“the father”) filed a Notice of Appeal, then on 19 June 2017 filed an Amended Notice of Appeal, and finally on 17 August 2017 filed a Further Amended Notice of Appeal seeking leave to appeal against one order, and appealing against a second order made by Judge Wilson on 18 August 2016.
Ms Segal (“the mother”) opposes the application and the appeal.
The order the subject of the application for leave to appeal granted leave for the mother to proceed on an undefended basis (paragraph (1)) and the order the subject of the appeal provided for the father to spend no time or communicate with the two children of the relationship (paragraph (5)).
Brief Background
At the date of the hearing before the trial judge the father was 45 years of age and the mother was 34 years of age.
The parties commenced a relationship in 2009 and finally separated in 2013.
The two children of the relationship were born in 2011 and 2013 respectively, and they have lived with the mother since the separation of the parties. The children have not spent any time with the father since January 2017.
The father is Australian by birth and he was unemployed at the time of the hearing before the trial judge.
The mother arrived in Australia as a refugee from overseas, but subsequently became an Australian citizen. By occupation she is a homemaker.
The Appeal
I propose to first deal with the application for leave to appeal the order that the mother have leave to proceed on an undefended basis.
The father recognises that he needs leave to appeal this order, but as a result of him not having legal representation he has not properly pleaded that in his Further Amended Notice of Appeal. Nor does the documentation that he has filed purporting to be a summary of argument assist in this exercise.
However, I am prepared to overlook these deficiencies, and do the best that I can to address his complaint about this order.
Although there is some doubt about the test to be applied (see Medlow & Medlow (2016) FLC 93-692 and Lindsey & Christie and Anor (2016) FamCAFC 132 per Strickland J at [1] – [9]) I will proceed on the basis that the father must demonstrate that the decision is attended by sufficient doubt to warrant it being reconsidered, and that substantial injustice would result if leave were refused, supposing the decision to be wrong.
In summary, his Honour’s reasons for granting this leave were the unacceptable behaviour of the father in court, and his refusal to comply with interlocutory orders made previously by Judge Burchardt on 23 November 2015, and by the trial judge on 26 April 2016.
His Honour referred to the father’s behaviour in [9] as follows:
It must be said at the outset that this proceeding was conducted as an undefended application. The father sat in the body of the Court throughout the hearing of the proceeding before me. I did not permit him to sit at the bar table. After being warned that his conduct was unacceptable and that it would not be tolerated during the hearing of the proceeding before me and that continued unacceptable outbursts may lead to his being dealt with for contempt or his physical removal from the body of the Court and within the hearing of the Court, ultimately the father sat in the body of the Court, silently and did not participate in the proceeding.
I note that there is no challenge by the father in this appeal to his Honour’s description of his behaviour.
As to the non-compliance with orders, the order made by Judge Burchardt was an order made with the consent of both parties that the father attend for examination and report by a psychiatrist. The father refused to comply, and further orders were made by the trial judge, but the father maintained his refusal to comply. Importantly for this challenge, the order of April 2016 provided that in default of the father complying, the matter would proceed as an undefended trial. That of course is what subsequently occurred. His Honour said this at [11]:
The father refused to comply with my orders as well. On the hearing of the trial of this proceeding, the father presented himself at the bar table. Ms M. Agresta of counsel appeared for the mother and Ms D. Weiner of counsel appeared for the Independent Children’s Lawyer. I asked the father whether he had complied with my previous order to subject himself to psychiatric examination for the purposes of obtaining a report. He said he had not. The father said he had a reason for disobeying that order. He said his reason was the existence of a conspiracy orchestrated by the mother leading to her obtaining intervention orders against the father. The father’s explanation was nonsensical. In addressing me he was rude, discourteous, irrational, bombastic and offensive. I warned him that by reason of his failure to comply with orders previously made by his Honour Judge Burchardt and by me that in the absence of a psychiatric report the trial of this proceeding would proceed on an undefended basis. The father challenged such a proposition. I told the father that he had been given an abundance of warning of the likelihood of that fact coming to pass. He resisted. I directed him to vacate the bar table and offered him the opportunity of sitting in the well of the Court. I told him that if he remonstrated, was rude or discourteous he faced being dealt with for contempt or being removed from the Court and within the hearing of the Court. Ultimately, for the duration of the trial of this proceeding, the father remained compliant in the well of the Court.
The transcript of the hearing provided by the mother confirms the accuracy of his Honour’s recording of what transpired, and again the father does not challenge that in this appeal.
In his document purporting to be a summary of argument, the father explained that he refused to comply because the psychiatric report relating to the mother contained many “inaccuracies”, and he was concerned a report relating to him would also be inaccurate.
I consider that his Honour had ample justification for giving leave to the mother to proceed on an undefended basis. Further, the father was clearly put on notice that if he did not comply with the order, that would be the outcome.
His Honour’s order is not attended by any or any sufficient doubt to warrant it being reconsidered by the Full Court, and no substantial injustice would result if leave was refused, supposing the decision to be wrong. Thus, leave to appeal must be refused. Indeed, relevantly, even if leave was granted, no error by the trial judge has been demonstrated, and the appeal would be dismissed.
I also pause to note that the utility of this complaint is lost on this Court. In his Further Amended Notice of Appeal, the father seeks that this order be set aside, but he does not seek an order providing for a rehearing on a defended basis.
I now turn to the challenge to paragraph (5) of the order made by his Honour.
The complaint here is that in the exercise of his discretion the trial judge failed to take into account relevant considerations. Specifically, his Honour failed to take into account the following:
a)In her response filed on 1 October 2015 the mother sought an order that the children “spend supervised time with [the] Father at a Contact Centre with the time and the days to be determined by the Contact Centre”, and in paragraph 25 of her affidavit filed on the same day she said this:
I believe that [the father’s] time spent with [the children] should be supervised at a Contact Centre to ensure their safety and protection. [The father] has been verbally persuasive and abusive to [one of the children] and the constant verbal and racial abuse I have suffered from [the father] that [the children] have been exposed to. It is essential for [the children’s] well being that they are both guarded from this sort of behaviour from [the father].
b)In the Child Dispute Conference Memorandum to Court dated 9 October 2015, the family consultant recorded that, “Whilst [the mother] had difficulties identifying positive aspects to the relationship with [the father], she advised that she is supportive of [his] role as the children’s father”, and made the following recommendation:
The children will require a supportive environment in which to establish relationships with their father. It is, therefore, recommended that the children spend supervised time with their father at a children’s contact service.
Unfortunately, what the father has overlooked in referring this Court to only the mother’s response and affidavit, is that at the hearing before the trial judge on 12 August 2016, the order sought by the mother, and contained in a Minute of Order handed up to his Honour, was that the children spend no time with the father (Transcript 12 August 2016, page 12, lines 44 – 45, page 21, lines 7 – 9), and his Honour recognised that in [1].
Put in context then, at the hearing the father was seeking, inter alia, an order that the children spend time with him each alternate weekend from Friday until Sunday, and the mother was seeking an order that there be no time spent. Further, the Independent Children’s Lawyer (“ICL”) supported the mother’s application that there be no time spent (Transcript 12 August 2016, page 17, lines 42 – 44).
Thus, there was no application before his Honour for there to be supervised time.
As for the recommendation by the family consultant, that of course was prepared at a time when the mother was seeking an order for supervised time, and understandably the family consultant proceeded on that basis.
Thus, his Honour has not erred by failing to take into account the matters raised by the father.
Importantly, his Honour, in ordering that there be no time spent, provided ample reasons for that outcome, and there is no error by his Honour in that regard.
There was a disturbing history of family violence by the father towards the mother, and a significant concern of the children having been exposed to that violence. His Honour said this in his reasons:
8.The evidence adduced on behalf of the mother told of sustained, repeated incidents of physical, emotional and sexual violence inflicted by the father upon her. That state of affairs first became apparent prior to the birth of the children and continued throughout their relationship until final separation. The mother has been the unwilling victim of that violence for a sustained period of time. No excuse could possibly be offered still less accepted for the physical, emotional and sexual violence exhibited by the father, according to the evidence of the mother.
…
12.On behalf of the mother, Ms Agresta relied on three affidavits filed by her client, a s.11F memorandum and a psychiatric report prepared by Dr A. Ms Agresta also relied on the reasons for judgment of the magistrate that heard and determined the intervention application brought by the mother against the father.
13.I have read and considered the contents of each of those documents. They tell a remarkable story of physical, emotional and sexual violence orchestrated by the father upon the mother over a sustained period of time. They tell of the impossibility of the practical implementation of equal shared parental responsibility. The reasons for judgment of Magistrate Jones give voice to alarming findings of fact in respect of family violence. The psychiatric assessment of Dr A paints a picture of tolerable normality in the psychiatric state of the mother.
14.Conversely, on the two occasions during which the father interacted with me, I was able to assess his behaviour. I found him to be extraordinarily difficult - he refused to listen to matters that I put to him, he answered in an irrational and illogical way to many propositions I put to him, he was obdurate and he was uncooperative in the extreme. I fully understood why his Honour Judge Burchardt required him to submit himself to a psychiatric assessment. The father’s refusal to subject himself to psychiatric assessment indicated to me that he either had a disrespect for the law or that he himself may have suffered from psychiatric problems.
…
25.In my view, the father should have no time with the children. His behaviour will expose them to the risk of physical or emotional violence. The father’s conduct is unchecked, unacceptable and ought not to be condoned by this Court. This is not to say he may never have time with his children. If he demonstrates a fundamental shift in his current behaviour that may come to pass – but not until. His behaviour is mercurial, inconsistent, inexplicable and unacceptable. I will not imperil the children by granting him time with them at present.
…
There is no merit in the challenge to paragraph (5) of the order made by his Honour.
Conclusion
Leave to appeal paragraph (1) of the order made by his Honour should be refused, and the appeal against paragraph (5) of that order must be dismissed.
Costs
In the event that the application for leave to appeal and the appeal were dismissed, the mother sought an order for costs.
That order was opposed by the father, primarily because of his poor financial circumstances. He claims not to own anything, and his income is comprised of social security benefits.
This Court is able to make an order for costs if there are circumstances that justify that outcome (s 117(2) of the Family Law Act 1975 (Cth)). Here, the application for leave and the appeal have been wholly unsuccessful, and that is sufficient to justify an order for costs. The mother has been put to the expense of responding to the Notice of Appeal, and she has also borne the cost of obtaining the transcript as a result of the father failing to provide it.
As to the father’s financial circumstances, this Court has often held that impecuniosity is not a bar to an order for costs being made where there are circumstances that justify it (D & D (Costs) (No. 2) (2010) FLC 93-435). Here that is the case and I will make the order sought by the mother.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 26 February 2018.
Associate:
Date: 26 February 2018
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