Mahoney & Dieter
[2022] FedCFamC1A 60
•6 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mahoney & Dieter [2022] FedCFamC1A 60
Appeal from: Mahoney & Dieter [2021] FedCFamC1F 111 Appeal number(s): NAA 52 of 2021 File number(s): MLC 4348 of 2020 Judgment of: ALDRIDGE, HARPER & RIETHMULLER JJ Date of judgment: 6 May 2022 Catchwords: FAMILY LAW – APPEAL – COSTS – Appeal against a costs order – Where the application wholly unsuccessful – Vexatious proceeding – Where the appellants contended that the conduct of the respondent was such that it outweighed all considerations taken into account so that the appropriate order should be that there be no order as to costs – Relevant considerations – Weight challenges – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.01
Cases cited: Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
House v The King (1936) 55 CLR 499; [1936] HCA 40
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Number of paragraphs: 48 Date of hearing: 6 May 2022 Place: Melbourne (via video link) The First Appellant: Self-represented litigant The Second Appellant: Self-represented litigant The Respondent: Did not participate ORDERS
NAA 52 of 2021
MLC 4348 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MAHONEY
First Appellant
MS MAHONEY
Second Appellant
AND: MR DIETER
Respondent
ORDER MADE BY:
ALDRIDGE, HARPER & RIETHMULLER JJ
DATE OF ORDER:
6 MAY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.There is no order as to costs.
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 Mahoney & Dieter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Mahoney and Ms Mahoney (“the appellants”) appeal against an order requiring them to pay to Mr Dieter (“the respondent”) costs fixed in the sum of $5,418.22.
Ms Mahoney and the respondent are the parents of X (“the child”), who was born in 2011. Pursuant to orders made by the Family Court of New Zealand on 7 April 2017, the child lives with the respondent in Melbourne and travels to New Zealand twice a year to spend time with her mother.
The appellants filed Initiating Applications in the Family Court of Australia (as it was then known) seeking reconsideration of those orders on 14 November 2017 and 12 April 2019, but each was unsuccessful, as were the appeals from those decisions.
The appellants filed a further Initiating Application on 5 May 2020. This application has been set down for hearing on 28 July 2022 on the threshold issue of whether a reconsideration of the existing orders ought to be undertaken (see Rice and Asplund (1979) FLC 90-725).
In support of that application, the appellants filed an Application in a Case on 5 July 2021 seeking an injunction preventing the respondent from removing the child from Australia or New Zealand for a period of eight years and, to give effect to that order, a further order placing the child on the Family Law Watchlist for both Australia and New Zealand.
On 8 October 2021, a judge of the Federal Circuit and Family Court of Australia (Division 1) made the following orders:
1. The [appellants’] Application in a Case filed 5 July 2021 is hereby dismissed.
2. The Application in a Case filed by the [appellants’] on 5 July 2021 was instituted and conducted as a vexatious proceeding within the meaning of s 102Q(1) of the Family Law Act 1975.
3. The [appellants’] pay the Respondent’s costs of and incidental to the Application in a Case filed 5 July 2021 fixed in the sum of $5,418.22.
As I have said, the appeal is only against the costs order and they are faced with the unchallenged conclusion that their application was wholly unsuccessful and that its implementation and prosecution “lacked any real purpose or foundation and [was] an abuse of process” (at [38]).
In coming to the view that the costs order was just in all of the circumstances, her Honour took into account:
·The conduct of the appellants in making serious allegations against the father, his parents and his legal representatives (at [45]);
·The failure of the appellants to pay previous costs orders made against them (at [46]);
·The appellants were wholly unsuccessful on the application (at [47]); and
·The application was a vexatious proceeding (at [48]).
The appellants did not challenge these findings but contended that the conduct of the respondent was such that it outweighed all these considerations so that the appropriate order is that there be no order as to costs. Such conduct, even if not directly relating to the application itself, can be a relevant consideration (s 117(2A)(g) of the Family Law Act 1975 (Cth) (“the Act”)).
The respondent filed a Submitting Notice on 21 February 2022.
THE APPEAL
Was the primary judge’s decision unreasonable and “so devoid of any plausible justification that no reasonable person could have taken this course”? (Ground 1)
The appellants submitted that “[t]his ground gives statutory expression to the ‘Wednesbury principle’, that is, the principle laid down in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223” (Appellants’ Summary of Argument filed on 7 February 2022, paragraph 28). The appellants then refer to a number of decisions of the Federal Court of Australia which discuss and apply that decision.
These are all administrative law decisions which have no application to this appeal. Rather, as this is an appeal from a discretionary decision in the exercise of judicial power, the principles that apply are those set out in House v The King (1936) 55 CLR 499 at 505 as follows:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In support of the proposition that the decision was unreasonable, the appellants submitted that:
(1)The primary judge had not attempted to read or engage with “the Material” and demonstrated a lack of understanding of what the arguments were, and what evidence exists (Appellants’ Summary of Argument filed on 7 February 2022, paragraph 36); and
(2)When the respondent’s misconduct is compared with the alleged misconduct of the appellants’, there is a “grotesquely disproportionate treatment of the parties” (Appellants’ Summary of Argument filed on 7 February 2022, paragraph 37).
Neither of these submissions raise unreasonableness and, instead assert a failure to take into account a relevant matter. Nonetheless, it is convenient to deal with that aspect of the matter at this stage.
The appellants described their allegations of the misconduct of the respondent as “the Material”. “The Material” was described in the Summary of Argument as follows:
17. The Appeal Book (the Book) runs to several hundred pages in length, but there are two key documents that can make the task of analysis considerably easier. These are:
a. The Summary chart on page 542 of the Book (the Chart); and
b. The Supporting table on pages 543 - 568 of the Book (the Table)
18. The function of the Table is to show, (taking the filing date of each of the Respondent’s affidavits as the cut-off time for each column) the information the Respondent was giving the Court, compared to the information which should have been given to the Court (if the Respondent was complying with his disclosure obligations under Rule 13.01/6.01).
19. The Chart is a one page colour coded overview of the Table.
20. The Table was constructed by doing a thorough analysis of the Respondent’s affidavit evidence compared to the corresponding evidence provided by [N Health Service], [child welfare organisation] and the GP. We used the optical character recognition function in Adobe Acrobat and searched for terms such as “[N Health Service]”, “[child welfare organisation]”, “autism” and “anxiety” in each of the Affidavits of the Respondent (this is why all of the Respondent’s affidavits needed to be in the Book).
(Appellants’ Summary of Argument filed on 7 February 2022, paragraphs 17–20) (As per the original) (Emphasis removed) (Footnotes removed)
The “Supporting Table” has a number of columns, each relating to a category of event which set out what the appellants assert was disclosed and what should have been disclosed. It is this failure to disclose which is said to be the poor conduct of the respondent. These summaries are followed by hundreds of pages, being the documents referred to in Supporting Table.
I will take the first entry as an example. The category is described as “Trouble at school”.
Under the heading “What should have been reported” appears:
7 to 15 February 2018 – [The child’s] teachers record [the child] exhibiting a number of behavioural difficulties including tantrums, refusing to complete work and throwing a book at a teacher. …
(Emphasis removed)
The other two columns refer to an affidavit of the respondent dated 15 January 2018, which describes the child “progressing well at school but sometimes has issues with transitioning between classes” and an affidavit of the respondent of 20 April 2018, which is said to be silent on the issue (Appellants’ Written Submissions filed on 12 September 2021, Annexure A, p.1).
Other entries suggest, as further examples, that the respondent’s affidavits did not refer to matters such as mental health plans, treatment by the child welfare organisation, the respondent taking the child to a paediatrician without first obtaining the consent of the mother and that the respondent is assisted by his “multimillionaire parents” who are “financing” his legal bills and the child’s lifestyle (Appellants’ Written Submissions filed on 12 September 2021, Annexure A, p.17).
The appellants rely strongly on the following evidence of the respondent in an affidavit of 29 July 2020 which they described as a “Mea Culpa” (Appellants’ Summary of Argument filed on 7 February 2022, paragraph 26). I extract more than just paragraph 23(n)(ii) of the respondent’s affidavit relied upon by the appellants so as to place it in some context. The entire paragraph gives a history of the assessment of the child having autism spectrum disorder which commenced in New Zealand in late 2015. The relevant passage is:
23. …
n. At the recommendation of the assessment team, aspects of the assessment were rearranged because of Court proceedings in the Australian Courts at the request of each of the mother and myself at different times.
i.The initial interview to understand what was involved in an assessment was attended by my mother and I on 9 April 2019. On 12 April 2019 the Mother commenced further proceedings in this Court, just over one month after the Full Court had dismissed her appeal from the decision of Justice Austin.
ii. I admit I was concerned about the Mother’s involvement in the assessment process given her view of me and past experiences with her. I did not want the Assessment to be hijacked by the Family Court Proceedings nor did I want the Assessment to be the focus of the Mother in any further proceedings. In the circumstances I thought that a delay in the Assessment until the further proceedings had been dealt with would be the best way to protect [the child] from the litigation and ensure that the litigation did not impact on the assessment process or findings.
iii. Following the dismissal of the Application by Justice Hartnett on 14 August 2019 dates for the assessment were considered and communication between the Assessment team and the Mother commenced.
(Respondent’s affidavit filed on 29 July 2020, paragraph 23(n))
The primary judge dealt with this aspect of the appellants’ case as follows:
20.As previously referred to the [appellants’] filed detailed affidavits and relied on lengthy and factually complex written and oral submissions in support of their case. Although it is somewhat difficult to follow their reasoning doing the best I can it is the father’s alleged failure to consult and provide information about the child’s welfare to the mother, thereby not having met his obligation to “jointly co-parent” with the mother in the exercise of parental responsibility, that underpins the [appellants’] case that they be permitted to re-litigate the parenting issues. The [appellants] also submit that the father and his legal representatives have withheld information from the Court over a number of years thereby perverting the course of justice and that this fraudulent and unethical conduct is relevant to the question of the risk of the father and/or his parents removing the child from Australia in order to prevent the Court making the orders they seek. It is further submitted that that it is the Court’s usual practice to make watch list orders in cases where there is a “low degree of parental co-operation and a high degree of parental conflict” as they assert is the position in this case.
21.Underlying the [appellants’] case in support of the watch list order is the assertion that their application to re-litigate the parenting issues and thereafter their application that the child live with them is likely to succeed and that recognising that to be the case the father and/or his parents will abduct the child and take her to the United Kingdom or Europe to avoid the Court making the orders they seek. The [appellants] rely in support of their case on the following matters:
•That the child lives with the father in the grandparents’ home and they have contributed to the cost of her support and paid the father’s legal fees;
•That the father’s parents are wealthy and can afford to relocate with the child to either the United Kingdom or Europe or financially assist the father to do so;
•That the father’s parents have business interests in New Zealand, Australia and the United Kingdom; and
•That the paternal grandfather is a [Country T] citizen.
22.In my view the assumption the [appellants’] make, even if they do establish that the father has withheld information about the child, failed to consult with the mother or that either he or his legal representatives have misled the Court, that they will be permitted to re-litigate the question of with whom and where this child should live and that there application for residence will be successful is problematic. Even if the parenting issues were to be re-litigated, which given this will be the [appellants’] third attempt to do so, the first two being unsuccessful both at first instance and on appeal, is likely to be a difficult case for them to make, the outcome of any substantive application will be governed by the child’s best interests. The assumption upon which the [appellants] base their case generally and in support of the watch list order ignores the fact that the child has been living with the father in Australia for many years.
(Emphasis added)
It is plain from the emphasised passages that the primary judge did not come to any concluded view as to whether the respondent had failed to “give full and frank disclosure of all information relevant to the proceeding, in a timely manner” (r 6.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). This is most understandable.
“The Material” consists of allegations that matters which should have been disclosed by the respondent, but were not. In doing so they rely upon what the respondent said in various affidavits. Affidavits are not a means of general disclosure but are evidence for use in particular proceedings. Thus the fact that something was not referred to in an affidavit does not mean that it had not been disclosed in some other way. Further, the contents of affidavits must be relevant to the issues in the particular proceedings for which they are drawn and a party ought not be criticised for failing to include material not relevant to the application in his or her affidavit.
The obligation is not to disclose everything of interest to the appellants but only that which is relevant to the proceeding of which the discloser is aware. Thus, in the first example above, there is was no evidence that the respondent knew of the matters in school notes when he swore the second affidavit (and noting that the event occurred after the first affidavit was prepared).
Finally, “the Material” remained unanswered by the respondent, unsurprisingly, given that contested issues of fact are rarely determined at interim hearings.
When “the Material” is understood in that way, it is plain that I cannot accept the appellants’ submission that the primary judge did not read, engage with or understand “the Material”. Her Honour correctly identified it as a set of allegations yet to be determined, concisely summarised it and considered that, even if established, it remained “problematic” that it would carry the day in the application to re-litigate the parenting issues (at [22]). For the reasons given, it was given little weight in deciding whether the orders sought by the appellants should be made.
In Bondelmonte v Bondelmonte (2016) 259 CLR 662, the Court said the following:
43.… The term “consider” imports an obligation to give proper, genuine and realistic consideration …
Her Honour gave such consideration to “the Material”.
Having failed to persuade her Honour that “the Material” had forceful weight on the substantive issues before the Court, from which there is no appeal, the appellants contend that it carries such weight on the issue of costs. As I have said, more than once, there is no appeal against that decision.
If “the Material” is a set of unresolved allegations, as the primary judge considered them to be and which, in our view, they clearly are, then it is difficult to see how they could be accorded any significant weight, let alone decisive weight, on the question of costs. That is particularly so when that consideration is set against the unchallenged findings that the appellants’ application was wholly unsuccessful and vexatious.
In my opinion, there is no basis for concluding that her Honour’s decision was unreasonable or plainly wrong.
Did her Honour err in the exercise of her discretion by failing to have regard to relevant matters? (Ground 2)
The matters said to have been ignored by the primary judge is the misconduct of the respondent which the appellants contend should have been taken into account.
In dealing with the conduct of the parties on the issue of costs, the primary judge said:
45.The [appellants’] conduct in these proceedings in particular the serious allegations they make against the father and/or his parents and the father’s legal representatives, is a significant issue. Conduct which is even more inappropriate given [Mr Mahoney’s] legal qualifications.
There is no reference to the conduct of the respondent.
However, as I have already explained, her Honour did have regard to allegations made by the appellants as to the conduct of the respondent but, correctly in my view, did not see them as more than allegations or accord it the weight that the appellants sought to have attributed to it.
In this matter the appellants submit that because the primary judge only directed two sentences to the issue of conduct, neither of which referred to the conduct of the respondent, inadequate consideration was given to this aspect of the matter. In support, the appellants referred to many administrative law decisions which deal with the issue of whether a decision maker had, in fact, properly considered the matters before him or her or merely touched upon them. As explained, they do not assist on an appeal from a judicial determination.
Earlier in the reasons, the primary judge explained why little weight was to be afforded to “the Material”. There was no need to repeat that consideration on the issue of costs and in my opinion, it clearly it was taken into account.
Was the decision as to costs made for an improper or ulterior purpose? (Ground 3)
The appellants submitted:
57.The learned judge was passed the file the morning of the hearing. She was not familiar with the case. It was much more complex and involved than she had time and capacity to consider. Her circular reasoning about ‘proof’ wrongly led her to dismiss the Material as vexatious without considering it.
58.This was a situation where ‘the buck stopped’ with the learned judge. Instead of doing her duty, she ‘shot the messenger’ and attempted to ignore or discredit the Material. There is no reason for failing to pass the Material to the Marshal of the Court unless the judge did not want it to progress further.
(Appellants’ Summary of Argument filed on 7 February 2022, paragraphs 57–58) (Footnotes omitted)
In circumstances where the primary judge was dealing with the interim issue of whether the child should be placed on the Family Law Watchlist and where the appellants themselves agreed that “there is a very, very heavily contested argument about whether information was wilfully withheld from the court” and that it is “not something that you can deal with today” (Transcript 22 September 2021, p.22 lines 25–28), I do not know what the primary judge was supposed to do when “the buck stopped” with her. It is also quite unclear what the Marshal was supposed to do with the material.
The appellants do not, apart from the unpleasant and incorrect insinuation that the primary judge sought to evade her judicial obligations, deign to identify any ulterior or improper motive. I cannot see one and in my opinion, this ground is not made out.
Was the decision plainly wrong and did the primary judge have regard to irrelevant matters? (Grounds 4 and 5)
The appellants assert that “[t]he pleadings speak for themselves” (Appellants’ Summary of Argument filed on 7 February 2022, paragraph 59), whatever that means. They also relied on their submissions as to other grounds.
The appellants do not identify the irrelevant matters taken into account. It is impossible to take that aspect of the appeal further.
It is clear from what I have already said, that her Honour’s decision is not unreasonable or plainly wrong. Indeed, having regard to the unchallenged findings that the substantive application was unsuccessful and vexatious, I consider the decision, with respect, to be plainly correct.
In my opinion, the appeal should be dismissed and I propose an order to that effect.
HARPER J:
I agree with the orders proposed and the reasons of Aldridge J for those orders.
RIETHMULLER J:
I too agree with the orders proposed and the reasons for those orders.
ALDRIDGE J:
The order of the Court therefore is that the appeal is dismissed and as the respondent filed a Submitting Notice, accordingly there will be no order as to costs.
I certify that the preceding forty-eight (48) numbered paragraph is a true copy of the ex tempore Reasons for Judgment of the Honourable Justices Aldridge, Harper & Riethmuller. Associate:
Dated: 12 May 2022
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