Markwell & Solberg
[2021] FedCFamC1A 80
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Markwell & Solberg [2021] FedCFamC1A 80
Appeal from: Markwell & Solberg (No. 3) [2021] FCCA 812 Appeal number(s): EAA 33 of 2021 File number(s): CAC 1533 of 2014 Judgment of: ALDRIDGE J Date of judgment: 9 December 2021 Catchwords: FAMILY LAW – APPEAL – DISQUALIFICATION – Appeal against dismissal of recusal application – Appeal against order requiring the parties to provide relevant reasons for judgment and orders to child welfare authority upon any notifications made – Reasonable apprehension of bias – No error established – Appellant’s delay in raising the application waived her right to object – Applications in the appeal dismissed – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 68B, 114 Cases cited: CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Royal Guardian Mortgage Management Pty Ltd v Nguyenand Another (2016) 332 ALR 128; [2016] NSWCA 88
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Number of paragraphs: 72 Date of hearing: 23 September 2021 Place: Sydney (via video link) The Appellant: Self-represented litigant Solicitor for the First Respondent: Chamberlains Law Firm The Second Respondent: Self-represented litigant ORDERS
EAA 33 of 2021
CAC 1533 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MARKWEL
Appellant
AND: MR SOLBERG
First Respondent
MR RANWICK
Second Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
9 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 15 September 2021 is dismissed.
2.The Application in an Appeal filed on 21 September 2021 is dismissed.
3.The appeal is dismissed.
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 Markwell & Solberg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
This is an appeal against the refusal of a judge of the Federal Circuit Court of Australia (as it was then known) to disqualify herself from the hearing of an Application in a Case filed on 15 December 2020 and amended on 10 March 2021.
Ms Markwell (“the mother”) has been involved in parenting and property proceedings with Mr Solberg (the father of her first child, B, who was born in 2010 (“the first respondent”) and Mr Ranwick (the father of her second child, D, who was born in 2017 (“the second respondent”) for some time.
On 30 June 2020 the primary judge made a suite of parenting orders after a contested hearing. It is not in dispute that in determining those proceedings the primary judge made adverse findings as to the credibility of the mother. Those findings were the basis of the application for disqualification.
As to D, the orders provided for the mother and the second respondent to have equal shared parental responsibility. If the mother lived within 200 kilometres of Town E, she was to live with the mother and spend time with the second respondent. If not, the child was to live with the second respondent and spend time with the mother during school terms as agreed and during the school holidays in accordance with the orders.
As to B, the mother and the first respondent were to have equal shared parental responsibility for her. She was to attend school in Canberra and spend equal time with her parents during school terms, provided the parents both lived within the Canberra district. Otherwise, B was to live with the first respondent and spend time with the mother, as agreed, until the mother moved to Canberra.
However, in order to fully understand the appeal, it is necessary to delve into the history of subsequent events.
BACKGROUND
The mother had filed three Applications in a Case which remained unresolved by the time the reasons for judgment in the parenting proceedings were delivered on 30 June 2020. They were listed before the primary judge on 20 July 2020 and sought the following:
(1)Leave to provide a copy of the Family Report to the Australian Federal Police and to others (filed on 24 April 2020);
(2)Recusal of the primary judge and that the proceedings be transferred to the Melbourne registry (filed on 9 June 2020) and
(3)Property orders (filed on 11 June 2020).
On that day the first application was granted and directions were made in respect of the property application. The mother withdrew her application for recusal and change of registry. In the reasons for judgment of 11 March 2021, her Honour said of those applications:
4.I noted that the parties had agreed to me determining any interim application after which consideration would be given to the matter being transferred to another judge, bearing in mind the credit findings made in the substantive parenting proceedings.
The mother did not challenge that statement.
The position in relation to the recusal application is somewhat complicated. Her Honour dismissed the application on 20 July 2020. However, the mother’s appeal against the substantive orders made on 30 June 2020 included a ground asserting that the primary judge erred by not determining that application prior to giving judgment.
Meanwhile, the mother filed another Application in a Case on 28 July 2020 seeking the recusal of the primary judge as well as a stay of the parenting orders made on 30 June 2020 pending the appeal. Both applications were refused on 3 August 2020 and 7 August 2020 respectively. The appeal by the mother against the orders of 7 August 2020 was withdrawn at its hearing and accordingly dismissed. The mother said that in doing so, her barrister did not follow her instructions but that does not alter what occurred.
The appeal against the parenting orders themselves was dismissed on 18 December 2020.
Returning to 20 July 2020, the primary judge also made the following orders as described in her Honour’s reasons on the application the subject of this appeal:
8.On 7 August 2020 I also made specific orders to give effect to the final parenting orders of 30 June 2020. The 7 August 2020 orders set out the arrangements for B to spend time with her mother prior to the mother relocating to Canberra and specified the date on which D’s time with [the second respondent] was to commence in accordance with the orders of 30 June 2020. I made orders requiring the parties to comply with all Government Covid-19 safety restrictions as this had been the source of an ongoing dispute between the parties.
9.By consent, on 7 August 2020 I made an order extending the time by which the mother was to file an initiating application for a property settlement. I made orders for the filing of submissions in relation to the costs applications made by [the first respondent] and [the second respondent] which I had insufficient time to consider that day.
10.More controversially, on 7 August 2020 I made an order that, in the event any of the parents made a notification to the police or a child protection agency in relation to either of the children, they were required to also provide to the police or child protection authority a copy of the orders and reasons for decision dated 30 June 2020 and a copy of the orders of 7 August 2020. This was because, in the period of a little over five weeks between the judgment on 30 June 2020 and when the matter came before me on 7 August 2020, there had been another notification made by the mother to a doctor who, in turn, made a report to a child protection agency. The orders I made did not prevent any child protection agency from investigating any future notifications but gave them the benefit of a broader perspective given the reasons for decision dealt in detail with numerous previous notifications made directly or indirectly by the mother to child protection agencies, none of which were substantiated.
On 15 December 2020 the mother sought orders which, in effect, would permit her to travel to Victoria with the children. Orders enabling her to do so were made on an interim basis but the application for the discharge of Order 7 made on 7 August 2020 (which prevented the mother taking the children out of the ACT or NSW) was adjourned to 11 March 2021.
No objection was taken by the mother to the primary judge hearing that application or listing the balance of it for hearing by her on the later date. This was consistent with the earlier agreement of the parties that the primary judge “tid[y] up” any issues arising from the parenting orders (at [20]).
It appears that the primary judge, with the consent of the parties continued to hear the property proceedings and two applications for costs. At the time of the recusal application on 11 March 2021, those matters had been heard and reasons for judgment reserved. At the hearing on that day, the mother made it clear that the recusal application did not extend to those applications (Transcript 11 March 2021, p.7 lines 20–39).
On the day before the hearing, namely 10 March 2021, the mother filed an Amended Application in a Case seeking the discharge of all the interim orders made on 7 August 2020 and that the primary judge recuse herself.
As I have said, on 11 March 2021 the primary judge dismissed that application. The following orders were made:
…
3. Order 8 of the orders of 7 August 2020 is amended to read as follows:
8. Until 31 December 2026 in the event of any of the parents notifying or causing any other person to notify either the police or a prescribed child welfare authority that either or both of the children have been or are the subject of actual or potential abuse or neglect or other form of harm, the notifying parent shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a) A copy of these Orders;
(b) A copy of the Orders dated 30 June 2020; and
(c) A copy of the Reasons for Judgment dated 30 June 2020
4.Pursuant section 68B of the Family Law Act 1975 each party is restrained from providing to any other person a copy of the orders or reasons for decision of 30 June 2020 unless authorised by Court order to do so.
5.The [second respondent] shall forthwith take all reasonable steps to obtain from the FFF Medical Centre at Town R a copy of the reasons for decision dated 30 June 2020 explaining that he was authorised to provide them to the police or a child protection agency but not to anyone else.
6.The application in a case filed on 15 December 2020 and the amended application in a case filed on 10 March 2021 are hereby dismissed.
7.The contravention application filed by the mother on 10 March 2021 is transferred to a Judge other than [the primary judge] for hearing on a date to be advised.
THE APPEAL
The mother challenges the refusal of the primary judge to disqualify herself and the making of Order 3.
Applications in the Appeal
The mother filed an Application in an Appeal on 21 September 2021 seeking leave to rely on her Summary of Argument and List of Authorities filed late, adduce further evidence and a costs certificate in relation to the appeal. The costs application is dealt with below.
At the hearing of the appeal, I gave leave to the mother to rely on the documents filed late and to adduce further evidence being paragraphs 40–52 of her affidavit filed on 21 September 2021. In these paragraphs the mother asserted that the second respondent breached a family violence intervention order, about which she complained to the police. The second respondent acting under the authority of Order 8 made on 7 August 2020, provided a copy of the reasons for judgment of 30 June 2020 to the police. No action was taken by the police.
The obvious intent of this evidence is to show that the Order 8 made on 7 August 2020 ought not to have been made because it had the effect that the police did not proceed with the complaint.
The evidence does not disclose why the police did not proceed to deal with the mother’s complaint further. There could be many reasons why they did so and it cannot be speculated that the production of the reasons was the cause for it, and if it was, that the decision not to proceed was wrong or unreasonable.
The further evidence therefore does not identify error.
The first respondent also filed an Application in an Appeal on 15 September 2021 seeking summary dismissal of the appeal because at the time of its filing, the mother had not filed her Summary of Argument as required. It was not pressed at the hearing and will be dismissed.
Grounds of Appeal
The mother’s Notice of Appeal extends to 22 grounds of which 14 assert apprehended or actual bias. In her oral submissions, the mother made it clear that she was not pursuing any suggestion of actual bias.
In the light of the wide-ranging submissions made by the mother on the appeal, it is important to identify the basis of the application for recusal that was raised before the primary judge as set out in the mother’s affidavit filed on 10 March 2021. Apart from complaints about the unfairness of the orders of 30 June 2020 and the harm they have caused the mother, two matters were raised.
The first was that the primary judge had a closed mind as to an injury D had suffered which was the subject of evidence on 7 August 2020.
The second was a series of comments made by her Honour in her reasons of 30 June 2020 and repeated on 20 July, 3 August and 7 August 2020 to the effect that because adverse credit findings had been made by the primary judge against the mother the remaining issues should go before another judge.
Those comments, of course, must be seen in the light of the agreement of the mother, that aspects of the matter, including apparently the property issues, could be heard by the primary judge.
It is well-established that a litigant may lose, or “waive”, the right to raise the issue of disqualification by failing to do so within a reasonable time of any application arising. In Vakauta v Kelly (1989) 167 CLR 568, Brennan, Deane and Gaudron JJ said at 572:
Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
However, the principle is not inflexible in operation, as Basten JA explained in Royal Guardian Mortgage Management Pty Ltd v Nguyen and Another (2016) 332 ALR 128 (“Royal Guardian”):
26.There are, therefore, two significant features of Vakauta which need to be borne in mind in the application of the principle regarding waiver. First, there was a precise point in time at which the appellant could have identified an element of pre-judgment, when there was a reasonable opportunity to object. Secondly, the judgment itself may revive the earlier appearance of bias, in which case, there being no further opportunity to take objection, the ground is available on appeal.
In her amended application filed on 10 March 2021, the mother relied upon comments in the reasons for judgment of 30 June 2020 and comments made on 20 July, 3 August and 7 August 2020. On 20 July 2020 the mother consented to the primary judge determining further interim applications, as explained by the primary judge at [18]–[20].
As I have recorded, the mother appealed the orders of 7 August 2020 but the appeal was abandoned. Thus, unless the later matters relied on by the mother in some way revive the earlier issues that aspect of the matter has been determined.
The mother filed an Application in a Case on 15 December 2020 which sought the discharge of Order 7 made on 7 August 2020. It came before the primary judge on 17 December 2020 where it was fixed for hearing on 11 March 2021. The mother did not seek the recusal of the primary judge in the application or on that hearing date.
Nothing relevantly occurred between 17 December 2020 and 10 March 2021 which could be used in support of the application for disqualification. There is therefore much to be said for the proposition that the mother had waived her claim of recusal by failing to bring an application within a reasonable time after 7 August 2020 or December 2020.
In her Notice of Appeal the mother also refers to comments made in the course of the hearing on 11 March 2021. The mother made no complaint based on them at the time. Further, those comments must be seen in context.
For example, the mother relied on the primary judge saying “that’s me saying over and over again another judge is going to have to deal with the matter and anything filed by you” (Ground 4(a)). The mother had referred the primary judge to paragraph 20 of her affidavit of 10 March 2021, which listed statements made by her Honour in July and August of 2020. The exchange continued:
HER HONOUR: All right. That’s me saying over and over again another judge is going to have to deal with any other applications that come before me – that are filed by you and, in particular, I was noting contravention applications. And I can say I would be very happy about another judge taking the matter over. And it may – this might actually resolve it. I will just raise this with you. It seems to me – I did foreshadow, given I had made some significant findings of credit against you in the major decision that I made in June of last year, that any contravention proceedings or any other, you know, new set of proceedings ought to go before a different judge, because I’ve made those findings of credit and you’re entitled to come before a judge with a clean slate, if you like, and away you go.
And I haven’t changed my mind about that. I think the other parties would have to convince me that I should stay in a matter to deal with any contravention proceedings. And given, I think – I don’t know the volume – the file goes to 12 volumes now and, you know, there would be a level of relief personally in not having to deal with the matter anymore. But when it comes to tidying up the arrangements for [B] or [D], I’ve got all of that history and all of the detailed knowledge that would be so hard for another judge to get on top of for such – for, you know, a tweaking sort of exercise. And findings of credit aren’t going to come into it, because I’m just dealing with it to – you know, really as transitional arrangements; that’s what has happened so far. So I’m just – if I agree with you in terms of contraventions going before another judge, does that dispose of your application or is there something else you say I shouldn’t deal with?
(Transcript 11 March 2021, p.11 line 35 to p.12 line 10)
Here the primary judge is explaining the earlier comments, why aspects of the matter remain before her and why her Honour did not propose to deal with certain matters. It is a recognition of what had taken place earlier. In any event, the mother did not suggest to her Honour that this explanation itself was a further instance that would lead to a reasonable apprehension of bias.
In her Summary of Argument filed on 20 September 2021, the mother also pointed to the following passage:
HER HONOUR: …Now, I made a whole lot of comments that you have now referred to about me saying I agree with you the matter should go to a different judge, given I’ve made significant findings of credit. In a contravention application there will be credit – you know, credit may well have an impact, which is why it’s good to go to a different judge. And in any more substantive proceedings that would be the case. Where I’m asked to deal with the flow on from a very substantial matter I’ve dealt with, it seems to me that is appropriate. And me making those statements that the future matter should go to another judge does not mean I’m biased against you now. It’s just, you know, really - - -
(Transcript 11 March 2021, p.24 lines 16–24)
The mother did not suggest that anything in these remarks and reasons, which, when read along with the earlier ones, “revive[d] the earlier appearance of bias” (Royal Guardian at [26]). They were simply a repetition. Again, the mother did not rely on these comments at that time.
It follows that the matters relied on by the mother could and should have been raised earlier. The primary judge found that by her delay the mother had waived her right to object (at [23]–[24]). In my opinion, she was correct to do so.
The test for apprehended bias is that a judge is disqualified “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at [6]).
As the plurality in Ebner explained, the test involves two steps:
8.… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
See also CNY17 v Minister for Immigration and Border Protection [2019] HCA 50 at [19].
The identification of what might be said to give rise to the apprehension of bias is easy in this matter. As the primary judge herself recognised, more than once, the earlier adverse comments as to the creditworthiness of the mother’s evidence, were something that could give rise to an appearance of bias. That is the first step.
Before turning to the second step, it is essential to identify the question that the primary judge was required to decide. As the primary judge identified at [16], the mother sought the discharge of the orders made on 7 August 2020, which were the subject of the withdrawn appeal, other than for Orders 2, 3 and 5. Of those remaining orders, Order 1 was now otiose as it refused a stay of the 30 June 2020 orders pending appeal, which was dismissed on 18 December 2020. Order 4 provided for the time D was to spend with her father to commence on 12 August 2020. Again the discharge of that order was pointless. Order 6 required each parent to comply with government COVID-19 safety requirements. Orders 9 and 10 were procedural.
Thus, in fact the only truly controversial orders were Orders 7 and 8 which provided that:
7.Each parent is restrained from taking the children or either of them outside of the ACT and NSW or allowing anyone else to do so without the prior written consent of the other parent or a Court order.
8.In the event of any of the parents notifying or causing any other person to notify either the police or a prescribed child welfare authority that either or both of the children have been or are the subject of actual or potential abuse or neglect or other form of harm, the notifying parent shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made:
(a) A copy of these Orders;
(b) A copy of the Orders dated 30 June 2020; and
(c) A copy of the Reasons for Judgment dated 30 June 2020.
The point of Order 8 is that there had been repeated notifications to child welfare authorities, particularly by the mother, which the primary judge determined had not been warranted. Such a notification was made after 30 June 2020, leading to the order.
The mother did not explain to the primary judge, or to me, how the mother’s creditworthiness bore on issues of whether Orders 7 and 8 should be discharged. The mother submitted that the primary judge “has a fixed mindset that the [mother] is ‘not credible’ in every instance as there is no jurisdictional fact to sustain the validity of the order” (Mother’s Summary of Argument filed on 20 September 2021, p.6) (Emphasis in original) (Footnotes omitted). The footnote to that submission was a reference to R v Watson; Ex parte Armstrong (1976) 136 CLR 248.
Significantly, at 264 of that decision, Barwick CJ, Gibbs, Stephen and Mason JJ said:
As the cases show, there are some matters on which a judge may have preconceived opinions, and yet be qualified to sit, but speaking generally the credit of an essential witness, where the case may turn on credibility, is not one of them.
That is an application of the second test in Ebner, albeit, pre-dating that decision.
It is not at all apparent to me how the mother’s creditworthiness bore on her repeated notifications to child welfare authorities and the order that was made in respect of them. As the mother has not explained the link and as none is apparent to me, the grounds of appeal relating to the recusal must fail.
The mother referred repeatedly to an aspect of the hearing of 7 August 2020. The mother had given evidence that D had been returned to her with a significant cut on her foot which required medical attention. The mother made a notification to the child welfare authority. In the course of the hearing on 11 March 2021 the primary judge agreed that it was a “nasty cut”, but her Honour “wasn’t overly concerned about it because it seemed to have been dealt with appropriately” (Transcript 11 March 2021, p.16 lines 2–3).
Apparently, as emerges from the transcript of 11 March 2021, the primary judge on 7 August 2020, asked the father’s lawyer about the cut and was informed that she did not have instructions, whereupon the primary judge said “Okay. Okay. Don’t worry. Keep going” (Transcript 11 March 2021, p.18 line 18).
This led to submissions being made to her Honour that it indicated that the primary judge’s “mind was closed” (Transcript 11 March 2021, p.20 line 47). The mother added:
[THE MOTHER]: In the context where a doctor makes a mandatory report for medical negligence and your Honour is entirely satisfied that [the second respondent] is very capable of looking after a two year old – then two-year-old child, if you’re using the reasonable man test, your Honour, respectfully, I don’t know any reasonable man or layperson that would find that acceptable.
HER HONOUR: Yes, in the absence of that great long history, maybe you’re right. In the context of that history, I don’t think you are right. What else do you want to say? What other arguments do you want to put that a reasonable fair-minded lay observer would think that I am biased against you?
(Transcript 11 March 2021, p.21 lines 40–47)
The relevant submission made on appeal was:
Her Honour has not followed the law and the best interests principles, ensured independence and impartiality in the ‘totality’ of her conduct as required for the bias test.
(Mother’s Summary of Argument filed on 20 September 2021, p.10) (Footnotes omitted)
Again, there is no reference to the earlier credit findings, which were said to be the basis for recusal. To the extent that the primary judge’s approach to hearing from the father as to whether he notified the mother of the cut, was unreasonable or even wrong, that error does not give rise to an appearance of bias.
The remaining grounds were not specifically dealt with by the mother by direct reference to the grounds, rather the submissions were broadly grouped by topic and I shall do the same.
Was Order 3 the subject of “jurisdiction in excess”? (Mother’s Summary of Argument filed on 20 September 2021, p.6)
It is to be recalled that Order 8 made on 7 August 2020 required any parent making a notification to a child welfare agency to also provide a copy of the reasons of 30 June 2020 to that authority at the time the notification was made. Order 3 made on 11 March 2021 limited the operation of that order to 31 December 2026.
Essentially, the mother’s argument is that the “federal jurisdiction cannot confer any orders directly or indirectly in an administrative manner at a state level” and that the order “overstepped the state and federal jurisdictional divide by indirectly making submissions to a jurisdiction about credibility where there is no power to make such submission” (Mother’s Summary of Argument filed on 20 September 2021, p.7).
The order does not confer any right, obligation or power on a state body. Rather, the obligation is on the parents to comply with the order. The evident aim is to limit unnecessary interventions by child welfare authorities, in the best interests of the child. Those authorities remain entitled to do as they think best on the information they receive and may give such weight as they think fit to the reasons.
These submissions are not made out.
Did the order “indirectly conscrip[t] services”? (Mother’s Summary of Argument filed on 20 September 2021, p.8)
The mother submitted that Order 3 “unduly, and in excess of jurisdiction, prejudices contact with services, indirectly conscripting services to ‘not believe’ any reports”. She supported that submission by referring to Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 (“Kable”) at [26] and [65] (Mother’s Summary of Argument filed on 20 September 2021, p.8).
The mother’s references do not appear to be accurate, but, in any event, there is nothing in Kable, which was a very different case, which assists the mother.
Further, the order does not “conscript” or require a state authority to do anything. It requires the parents to take steps to inform such authorities by providing a copy of the reasons to the authority but what happens thereafter is a matter for it.
The Court is empowered to make injunctions as part of a suite of parenting orders (ss 68B and 114 of the Family Law Act 1975 (Cth)) where such orders are in the best interests of the children. There is therefore jurisdiction to make the orders.
That also dispenses of the submissions made by the mother that the orders were administrative in nature, meant for the executive alone and therefore “unfair, an error of law and jurisdiction in excess” and there is “no legal legislative process that allows the alleviation of the requirement to ensure procedural fairness in proceedings under the Family Law Act 1975 (Cth)” (Mother’s Summary of Argument filed on 20 September 2021, p.8–9). In saying so, I do not accept that a court can never make orders of an administrative nature as part of the proper exercise of jurisdiction.
I am not persuaded of any error on the part of the primary judge and the appeal will be dismissed.
COSTS
Since the appeal is unsuccessful, the mother’s application for a costs certificate sought in her Application in an Appeal filed on 21 September 2021 will be dismissed.
The first respondent sought an order that the appellant pay his costs in the sum of $17,318.36 on the basis that the appeal was wholly unsuccessful.
The mother said that she was on Centrelink benefits, working between 4–20 hours a week and living with friends. She said, without demur from the first respondent, that there was not much in the property proceedings between them.
Whilst there is much to be said in favour of a costs order, including the mother’s conduct of the appeal by filing submissions at a very late stage, ultimately and on balance, I consider that a costs order would be yet a further barrier to the mother moving to Canberra so that the children can receive the full benefit of the orders made by her Honour.
As the second respondent did not seek a costs order, it follows that there will be no order as to costs.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 9 December 2021
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