MALCHER & MALCHER
[2016] FamCAFC 204
•26 October 2016
FAMILY COURT OF AUSTRALIA
| MALCHER & MALCHER | [2016] FamCAFC 204 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the Court to provide transcript – Where the matter is not an exceptional case – Where the father sought an adjournment of the appeal – Where the appeal had already been adjourned once on the father’s application – Applications dismissed. FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Contravention of orders – Where the trial judge imposed a bond on the father – Where the appellant failed to enter into the bond and a fine was imposed under s 70NEB(1)(da) of the Family Law Act 1975 (Cth) – Where the fine comprised three fines for each contravention by the father – Where only one fine should have been imposed as only one bond was imposed – Appeal allowed. FAMILY LAW – APPEAL – ENFORCEMENT OF ORDERS – Contravention of orders – Where the father asserted that the trial judge failed to consider that sanctions had already been imposed in relation to the contraventions under s 70NEB of the Family Law Act 1975 (Cth) – Where the variation of the parenting orders was not made under s 70NEB – Where the balance of the grounds of appeal related to orders not on appeal, or could not succeed without recourse to transcript – No appealable error demonstrated. |
| Family Law Act 1975 (Cth) Division 13A, ss 70NBA, 70NEB, 70NFA, 117 Family Law Rules 2004 (Cth) r 22.18 |
| Baldry v Jackson [1976] 1 NSWLR 19 Brookfield v Davey Products Pty Limited [1998] FCA 1201 Forbes & Bream [2008] FamCAFC 189 Medlow & Medlow (2016) FLC 93-692 Pearce v The Queen (1998) 194 CLR 610 Re O’Sullivan; Ex Parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145 |
| APPELLANT: | Mr Malcher |
| RESPONDENT: | Ms Malcher |
| FILE NUMBER: | SYC | 3808 | of | 2012 |
| APPEAL NUMBER: | EA | 44 | of | 2015 |
| DATE DELIVERED: | 26 October 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Cronin JJ |
| HEARING DATE: | 30 September 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 February 2015 |
| LOWER COURT MNC: | [2015] FamCA 281 |
REPRESENTATION
| THE APPELLANT: | In person (via telephone) |
| COUNSEL FOR THE RESPONDENT: | Ms Lawson |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Family Lawyers |
Orders
The Application in an Appeal filed on 14 September 2015 is dismissed.
The appeal against the orders of Johnston J made on 27 February 2015 is allowed.
The re-hearing of the consideration of any sanction to be imposed in relation to the admitted contraventions is remitted to a judge of the Family Court of Australia other than Johnston J.
There will be no order as to costs.
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 Malcher & Malcher 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 44 of 2015
File Number: SYC 3808 of 2012
| Mr Malcher |
Appellant
and
| Ms Malcher |
Respondent
REASONS FOR JUDGMENT
Mr Malcher (“the father”) appeals against a fine imposed on him by Johnston J after his Honour found that the father had, without reasonable excuse, contravened parenting orders by retaining the two children of his relationship with Ms Malcher (“the mother”). The father admitted the contraventions.
The contraventions related to three evenings, namely 18 August 2014, 1 September 2014 and 8 September 2014, on which, in breach of a parenting order, the father failed to return the children to their mother after spending time with them.
On 20 October 2014 the trial judge found the three contraventions proved. For reasons which are not presently relevant, the consideration of sanctions consequent on the findings of contravention took place on 27 February 2015. His Honour ordered that the father enter into a bond as a sanction for the contraventions. Upon the father declining to enter into the bond, his Honour fined the father $5,100, being 10 penalty units in relation to each of the three contraventions. His Honour ordered that the fine be paid within 30 days of its imposition.
The trial judge’s reasons
Having found the contraventions proved and moving to the question of any sanction to be imposed, his Honour identified Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) as being the relevant provision dealing with the consequences of failure to comply with orders affecting children. As the father had not before been subject to a sanction for failing to comply with an order relating to the children, he was entitled to the benefit of s 70NEB of the Act, referred to as a “less serious contravention” (at [5]).
His Honour noted that the wife submitted that, notwithstanding the father not having been sanctioned before, his Honour should apply the provisions of s 70NFA which concerns itself with more serious contraventions. His Honour declined to take this course, finding that the circumstances of the contravention did not amount to a “serious disregard of [the father’s] obligations”.
The father argued to the trial judge that the proceedings should be adjourned to allow the parties to seek other parenting orders. Further, he argued that he had been sanctioned sufficiently because he had not seen the children for some time, and said that to impose a bond would not be in the children’s best interests. Rather, the father submitted that the appropriate course would be for the trial judge to order compensatory time to the mother. Finally, the father argued that having spent nearly $500,000 in legal costs in some concurrent proceedings, the imposition of a surety was onerous.
His Honour found that it was in the children’s best interests that the parties comply with the present orders, and to achieve that it was appropriate to impose a sanction which would deter the father from further contraventions of the orders (at [17]-[18]).
His Honour rejected any adjournment and considered the nature of the contraventions too serious to warrant an order for compensatory time (at [18]).
Thus the trial judge determined to require the father to enter into a good behaviour bond together with a cash surety of $5,000. In compliance with his obligations, the trial judge explained to the father the nature of the bond and the conditions which he proposed to attach to it and the consequent forfeiture of $5,000 should the conditions be breached.
His Honour said:
21. I explained that if the father failed to enter into the bond, he would leave me with no course but to impose a fine which, on my calculation, would be $5100. This would be on the basis of 10 penalty units for each of the three contraventions. I noted that under s 4AA of the Crimes Act 1914 (Cth) “penalty unit” means $170. I explained that that would be paid immediately, as distinct from if he entered into a bond, in which case he would not have to pay anything at all, unless at some point in the future he was to breach the bond.
His Honour thus ordered that the father enter into a bond. The father declined to do so, and subsequently his Honour imposed the fine as he had indicated.
His Honour further ordered the father to pay the mother’s costs of the proceedings.
It is against these orders that the father appeals.
Application for provision of transcript
The father, by Application in an Appeal, sought an order that the Court pay for the transcript of the hearing before the trial judge. This application was listed to be heard at the same time as the appeal. The father contended that his present financial circumstances meant that he could not afford to pay the cost of the transcript. The appeal books had been compiled without the inclusion of the transcript.
Rule 22.18(1) of the Family Law Rules 2004 (Cth) (“the Rules”) places the obligation of providing transcript on the appellant. There is no legislative basis either within the Rules or the Act that provides that the Court obtain the transcript.
In Forbes & Bream [2008] FamCAFC 189 the Court said that, in the exercise of its discretion, the Full Court may agree to provide relevant parts of a transcript to enable the appeal to proceed but observed that it would only be a power exercised in exceptional cases where the interests of justice required so.
This is not such a case. The father is currently living overseas, though he has returned to Australia on occasion. He is not currently working, and he appears to be entirely supported by family in relation to his living costs. He contends that until the resolution of the property proceedings with the mother he has no access to the funds necessary to secure the transcript. We note that the appeal has been on foot since March 2015 and the father has availed himself of no alternative solution during this time, such as the cheaper option of listening to the transcript to determine which sections are relevant to his appeal.
The application was refused.
Application for an adjournment
The father further sought that the hearing of the appeal be adjourned. The appeal had already been adjourned at the father’s request by orders of the Court on 17 August 2016 on the basis that the father did not have access to his copies of the appeal books as he was in Europe. The Court provided him with soft copies of the appeal books to rectify this issue.
The basis for this application for adjournment was that the father said he would prefer to appear and prosecute his appeal in person.
We note that the mother appeared by counsel on the appeal and opposed the adjournment. Nothing in the father’s submissions on this point was persuasive of the need to have a further adjournment of the appeal. The application was refused.
The appeal
The father asserts eight challenges to his Honour’s orders. Grounds 1.6, 1.7 and 1.8 can be swiftly disposed of.
Ground 1.6 – procedural fairness
In this challenge, the father contends that the trial judge failed to afford him procedural fairness by not taking into account that his solicitors had ceased to act and filed the requisite notice only three days before the hearing. Further, it was asserted that the trial judge did not take into account that the father did not have access to his entire file during the hearing.
The father contended in oral argument on the appeal that he sought an adjournment of the hearing before the trial judge because he was then unrepresented but it was refused. In his summary of argument he does not refer to his Honour refusing any application for adjournment but rather sets out the ground and supports it thus: “This is self-evident from the transcript”. Of course there is no transcript to which we can refer.
His Honour makes no mention of any such application in his reasons, but that is not necessarily conclusive of the issue.
The decision to adjourn a matter is a procedural step for which leave to appeal is necessary.
Given the nature of the hearing, the conduct of the matter to that point, his Honour’s findings about the necessity to deter the father from future contravention, and the fact that the father was apparently able to not only appear for himself on the sanction hearing but also take his Honour through the relevant sections of the Act, we are persuaded that such leave should be refused. Nothing put to us in oral argument by the father persuades us that the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong (see Medlow & Medlow (2016) FLC 93‑692).
Ground 1.7 – service of the contravention application
This ground contends that his Honour erred in “allowing the applicant mother to serve the respondent father, or the respondent fathers [sic] solicitors with the contravention applications […] within the court precinct.”
The foundational assumption of the ground, that there is some impropriety in serving documents within the court precinct, is wrong. See Baldry v Jackson [1976] 1 NSWLR 19 at 25; Re O’Sullivan; Ex Parte O’Sullivan v Commonwealth Bank of Australia (1995) 57 FCR 145 at 148-9; Brookfield v Davey Products Pty Limited [1998] FCA 1201.
In any event, the father agreed that he had not raised this matter with the trial judge and therefore he should not be permitted to agitate it on appeal.
Ground 1.8 – bias
By this ground, the father asserts that his Honour exhibited “a strong bias” against him.
It is not altogether clear whether the father raised this apprehended bias with his Honour or whether the father asked his Honour to disqualify himself as a result. His answers to the question of whether he had raised the apprehended bias issue asked during the hearing of the appeal seemed equivocal. Certainly, his Honour made no reference to any such application or submission in his reasons.
In the absence of a transcript we are unable to consider this challenge to his Honour’s orders and will dismiss it.
Ground 1.1 - error in the interpretation of s 70NEB(1)(da)
Section 70NEB(1)(da) states:
If the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d) -- impose a fine not exceeding 10 penalty units on the person
The father asserts that his Honour erred in his interpretation of this section. His argument is based on the power of the Court to impose “a” bond, which the father argues his Honour did in respect of all three contraventions. However, the father contends that when imposing a fine for the failure to enter into that bond, his Honour erred by imposing three fines instead of one.
The only provision in s 70NEB(1) which entitles the Court to impose a fine for a contravention is s 70NEB(1)(da). His Honour’s reasons make it clear at [12] that he proceeded to determine whether to impose a sanction pursuant to Subdivision E, that is the subdivision relating to “less serious contraventions”. Section 70NEB(1)(da) sits within Subdivision E as the relevant section setting out the powers of the Court for dealing with such a contravention.
We note at the outset that the language of the section refers to “a contravention” and clearly contemplates, in accordance with general sentencing principles, that one offence (or contravention) is punishable by one sentence (see Pearce v The Queen (1998) 194 CLR 610). As the father was found to have contravened orders on three separate occasions, his Honour was entitled to consider them separately and impose a sanction as to each.
However, in this case, his Honour imposed one sanction, a bond, in respect of all three contraventions and required the father to enter into that bond, rather than impose a bond on each of the three proven contraventions. On the father declining to do so, his Honour was entitled to proceed under s 70NEB(1)(da) in respect of the father failing without reasonable excuse to enter into a bond as required by his Honour’s earlier order. However, as the terms of the section make clear, the maximum fine able to be imposed in relation to the bond is 10 penalty points.
Given that his Honour had imposed only one bond, he was in error to proceed to impose three fines for failure to enter into that one bond.
In this regard his Honour erred and this ground is made out.
Ground 1.2 – failure to consider earlier orders made pursuant to
s 70NEB(1)(b)
In relation to this challenge, the father makes two arguments. First, that on
20 October 2014, his Honour made an order which reduced his time with the children which, he argued, was imposed as a sanction on the father in respect of the contraventions, and his Honour failed to take into account this sanction when imposing the fine. Secondly, the father contended that his Honour erroneously “retrospectively” made the change permanent in his orders of 27 February 2015.
On 20 October 2014 the trial judge found the contraventions proved and his Honour’s orders contain the notation that the father “concedes a prima facie case in respect of each of the three alleged contraventions”.
His Honour then ordered:
4. That the requirement for the children […] to spend the Mondays with their father pursuant to order 2.2 of the orders of 16 July 2012 is suspended pending further order.
His Honour adjourned the proceedings for consideration of any sanction to be imposed. The matter was then finalised on 27 February 2015.
The challenge assumes that his Honour’s suspension of the father’s time on Monday evenings with the children was an order made pursuant to s 70NEB. That assumption is not correct.
Subdivision B of Division 13A of the Act, which contains the provisions which deal with the court’s power to vary a parenting order, contains the following in s 70NBA:
(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.
This section does not fall within Subdivision E, which concerns the powers of the Court on a determination of a less serious contravention.
We are not satisfied that his Honour’s order suspending the father’s time with the children was effected pursuant to s 70NEB as the father contends. We are fortified in this conclusion by his Honour’s findings in his reasons when considering the sanction to be imposed. He said:
5. Sub-section 70NEA(2) provides that sub-section (2) applies if no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order. That is clearly the case here because notwithstanding a long history of litigation, no court has previously made an order imposing a sanction in respect of either of the parties in these proceedings and particularly the father in these proceedings. The powers of the Court in respect of such matters are set out at
sub-section 70NEB(1) of the Act. That is contained in Subdivision E of Division 13A, which has as its heading, “Contravention without reasonable excuse (less serious contravention)”.
It could not seriously be suggested that his Honour failed to recall the orders he had earlier made in the very matter which was then before him.
Further, we note his Honour’s discussion in the reasons as to why he declined the mother’s application to proceed on the contraventions by application of
s 70NFA(2)(b) in which there is no mention of any imposition of an earlier sanction pursuant to s 70NEB.
For these reasons we reject the contention that the Court had already imposed a sanction for the found contraventions.
Returning then first to the assertion that the suspension of the Monday evening time between the father and children was “made permanent” by the orders of 27 February 2015, we understand the father to argue that since his Honour did not, in terms, discharge the order partially suspending the father’s time with the children, it remains on foot.
While that may in fact be the case, it is irrelevant to the appeal. The father did not challenge Order 4 made on 20 October 2014 and cannot do so sub rosa now.
This challenge is not made out.
Ground 1.3 – failure to adjourn the proceedings to permit the application of further parenting orders
This challenge relies on the assumption that his Honour’s variation of the parenting orders was made pursuant to s 70NEB and contends that that section did not permit his Honour to permanently change the primary parenting orders. The underlying assumption having been rejected by us, the ground falls away and is unable to be sustained. We reject the contention that his Honour had made a permanent change to the primary parenting orders for the reasons already given, although there is nothing in s 70NBA which would prevent such an order being permanently made.
His Honour however considered the father’s application for an adjournment of the proceedings concerning sanctions to be imposed and said:
14. The father has submitted that in his view, that would not be appropriate. He carefully took me through the various powers which are available to the Court pursuant to sub-section 70NEB(1). He referred to sub-section 70NEB(1)(c) and submitted that in the circumstances of the totality of these proceedings and bearing in mind that the parties are proceeding towards a final hearing in respect of all parenting matters, it would be appropriate to adjourn the proceedings to enable all parties to apply for further parenting orders which, as I have indicated, are in the process of being heard by the Court. In any event, the father said his clear view is that the Monday night order is no longer appropriate. He is anxious to have that order changed.
His Honour rejected the father’s application and said:
18. For the order, stability and regularity which is fundamental to the best interests of these children, in my view, it is essential that the arrangements under the court orders are not departed from by either of their parents. To achieve this important purpose, in my view, it is appropriate for this Court to address the father’s contravention of the orders by imposition of a sanction which will deter the father from any future possible contravention. For these reasons, in my view, an adjournment would not be appropriate and the matter is too serious simply to make an order for compensatory time. Such an order, in my view, would not be any deterrent.
Clearly the circumstances of the case as his Honour set out in his reasons provided ample basis for his Honour’s rejection of the father’s application to adjourn the matter.
No error has been established.
Ground 1.4 - error in not taking into account s 70NEB(5)
This ground alleges that his Honour’s amendment to the primary parenting orders made on 20 October 2014 did not take into account the best interests of the children.
It is to be observed that there was no appeal brought by the father against the orders made by his Honour on 20 October 2014. Again, as we have said, the foundational assumption of the ground, that is the basis for the making of the order, is rejected. The father correctly argued that the provisions of s 70NEB(5) provide that a court must not make an order pursuant to s 70NEB(1)(b) being an order for compensatory time if it would not be in the best interests of the children.
However, we reject the contention that the order of 20 October 2014 was made under that section.
His Honour said:
15. [The father] submitted that the Court should also consider the question of sanctions in the context of the fact that he has not had any time with one of the children now for a long time. The reasons for that can be seen from previous reasons for judgment which I have given in the proceedings between the parties. He said that for the purposes of the substantive proceedings there have been reports prepared by Dr [A]. A current report and possibly both reports, recommend that the father and the children should spend more time together. He said that he failed to see how placing him on a bond could be in the best interests of the children. He said that it would be preferable and in their interests for a make-up or compensatory order to be put in place.
His Honour squarely rejected there being any compensatory time in relation to the children, and thus his orders made on 27 February 2015 did not encompass s 70NEB(5).
This ground is rejected.
Ground 1.5 – failing to take into account the father’s financial circumstances
The father argued to his Honour that it would be inappropriate for him to be fined because the proceedings between the parties (of which the contravention applications were but a small part) had caused him to spend about $500,000 on legal costs.
During the appeal the father contended that his Honour erred by accepting the evidence of the father’s financial circumstances based on an outdated financial affidavit. He further argued that, from the bar table, he told the trial judge that his financial circumstances were worse than those represented in the affidavit.
Further, he argued that the trial judge knew he was no longer represented by his solicitor and that he was in dispute with those solicitors over fees and thus his Honour “should have regarded that fact as a change of [his] financial circumstances”. This contention merely needs to be set out to demonstrate its illogical nature.
No transcript is available to assist in the determination of this argument.
However, his Honour was certainly aware of the father’s contention as to his financial circumstances, as reflected in [16] of his Honour’s judgment. His Honour further set out and accepted at [26] the father’s assertions as to his then income, some $100,000 per year. Potently his Honour includes in his discussion at [26] the following words:
…But I have been informed across the bar table that the mother is a [health professional] earning an amount in the vicinity of $400,000 per year. The father said his current income is significantly less than that. He said it is approximately $100,000. I accept for the purposes of this application that the father’s financial circumstances are less than those of the mother.
(Emphasis added)
This paragraph robs support of the father’s argument that his Honour’s findings about the father’s financial circumstances were derived from an outdated affidavit and on its face, seems to indicate that his Honour was in fact considering the father’s “current” income as provided by him “across the bar table”.
In any event, his Honour acknowledged that the mother’s financial circumstances were superior to those of the father but nonetheless ordered the father to pay her costs.
This ground will be dismissed. His Honour’s decision to order the father to pay the mother’s costs was one entirely for the exercise of his discretion and the father has failed to demonstrate an error.
Disposition of the appeal
Ground 1.1 having succeeded, the appeal will be allowed and his Honour’s orders of 27 February 2015 will be set aside.
In the Notice of Appeal, the father sought that if his Honour’s order was set aside the matter be adjourned to be heard by Le Poer Trench J. We understand his Honour is part-heard in the determination of the parties’ property dispute. During the hearing, the father contended, in the alternative, that the orders simply be set aside and any parenting orders made by Le Poer Trench J be abided by each party.
We are not disposed to make either of these orders. We will remit the consideration of the question of sanction to be imposed in relation to the three contraventions to a judge of the Family Court other than Johnston J.
Costs
The father sought an order for costs against the mother in the event that the appeal succeeded. If a costs order against the mother was not made, the father sought a certificate for the appeal, and, we imagine, for any rehearing.
The mother opposed there being any order for costs against her. It was submitted that while she is earning a significant income, the whole of the financial burden of the children has fallen on her shoulders. The father pays no child support nor makes any other contribution to their upkeep.
The father relied on his current impecuniosity but indicated that when Le Poer Trench J delivered his reasons and made orders in the property issue, he would have access to funds.
The question of costs in appeals is governed by s 117 of the Act which provides that, as a general rule, parties to proceedings in this Court should pay his or her own costs. Although s 117(2A) provides the matters to which the Court must have regard if an order for costs against a party is to be made, nothing put to us persuades us that the mother should be ordered to pay the father’s costs of the appeal.
This is not a matter in which certificates should be ordered.
There will thus be no order as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Cronin JJ) delivered on 26 October 2016.
Associate:
Date: 26 October 2016
0
3
2