McNamara & Rose

[2007] FamCA 529

FAMILY COURT OF AUSTRALIA

McNAMARA & ROSE [2007] FamCA 529

FAMILY LAW - APPEAL – From decision of Family Court judge – s 118 order – application for permission to start a case – trial Judge refused leave to institute proceedings – no reasonable likelihood of success – appeal dismissed

FAMILY LAW - JURISDICTION – writ of prohibition – writ of mandamus – whether Family Court judge may issue writ against another Family Court judge – no authority to issue

FAMILY LAW - JURISDICTION – writ of certiorari – whether Family Court judge may issue writ to quash orders of another Family Court judge – no authority to issue

FAMILY LAW - JURISDICTION – writ of certiorari – whether Family Court of Australia judge may issue writ to quash orders of a State Magistrates Court – no authority to issue

FAMILY LAW - CONTEMPT – orders by consent – lack of specificity in the orders – orders did not specify time contact was to commence – difficulty in proving contravention – evidence insufficient to establish finding of a flagrant challenge to the authority of the Court – no reasonable likelihood of success

Family Law Act 1975, ss 4(1), 31, 33, 34, 39, 93A(2), 94(2A), 118(1)(c), 112AP(1)(a), 112AP(1)(b)
Crimes Act 1914
Evidence Act 1995, s 128
Judiciary Act 1903, ss 38(e), 39B(1EA)

Neil v Nott (1994) 68 ALJR 509
Watson & Morton  [2007] FamCA 497
Zabaneh & Zabaneh (1986) FLC 91-766
Re Attorney-General (Cth); Ex part Skyring (1996) 135 ALR 29
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone theatres (Aust.) Ltd. (1949) 78 CLR 389
Re Ross-Jones; Ex parte Green (1984) FLC 91-555
Warby & Warby (2002) FLC 93-091
Bizannes & Bizannes (1977) FLC 90-313
R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437
Craig v South Australia (1995) 184 CLR 163
Abduramanoski & Abduramanoska (2005) FLC 93-215
M & M [2004] FamCA 843
CDJ v VAJ (1998) FLC 92-828

APPELLANT: Mr McNamara

RESPONDENT: Ms Rose

FILE NUMBER: DGF 2894 of 2002

APPEAL NUMBER: SA 77 of 2006

DATE DELIVERED: 1 June 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: COLEMAN, MAY & THACKRAY JJ

HEARING DATE: 30 MAY 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 17 NOVEMBER 2006

LOWER COURT MNC: [2006] FamCA 1269

REPRESENTATION

COUNSEL FOR THE APPELLANT: Appellant appeared in person

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as McNamara and Rose.

Orders

1. That the application to adduce further evidence be dismissed.

2. That the appeal be dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 77  of 2006
File Number: DGF 2894  of 2002

Mr McNamara

Appellant

And

Ms Rose

Respondent

REASONS FOR JUDGMENT

1.[Mr McNamara] (“the father”) seeks to appeal against an order made by Carter J on 17 November 2006 dismissing his four applications for leave to institute proceedings. 

2.We intend to give portion of our reasons in short form. Section 94(2A) of the Family Law Act 1975 (“the Act”) permits the delivery of reasons in short form when the Full Court proposes to dismiss an appeal that does not raise any question of general principle. Whilst in a broad sense some of the issues raised by the father touch on matters of “general principle”, his grounds of appeal are largely incomprehensible. They do not justify the expenditure of judicial time that would be required to respond to them individually and in detail.

3.We are acutely aware that the father is a self represented litigant, who has gone to a great deal of effort to present his case to the best of his ability.  The High Court has said in Neil v Nott (1994) 68 ALJR 509 at 510 that “a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.” Accordingly, we regard it as our duty to consider the judgment of the learned trial Judge to determine whether there has been any denial of natural justice or error in principle, which we perceive to be the thrust of the father’s appeal. Otherwise, we propose to deal summarily with the miscellany of mostly misconceived propositions advanced by the father in support of his appeal.

The grounds of appeal

4.Before setting out the relevant background and referring to the judgment of the learned trial Judge, it will be convenient to set out the grounds of appeal with a view to illustrating the difficulties of the task confronting us.  We will refrain from reciting here even portion of the prolix submissions advanced in support of the grounds of appeal.  It is sufficient to say we have read and heard them and done our best to comprehend them.

5.The grounds of appeal were as follows:

1.I seek to Appeal the Order of Carter J made on the 17/11/2006, dismissing 4 individually filed “s.118 Leave” applications, pursuant to s93A and s94(1)(a) of the Act.

2.Carter J in error did deny an applicant unjustly a right to natural justice, by stepping out of her Honour’s Jurisdiction to claim a power to sit in judgement akin to Appeal on the Consent (prior agreed to) Orders of Fitzgibbon R made 30/11/1999.  Plus, challenges the enforceability of a Consent (prior agreed to) Court Order by claiming a personal dislike for the wording of the Order akin to exercising the power of an Appeals Judge.  Most offensive is Carter J’s challenge to the purpose and authority of the Family Court by claiming agreement is required for compliance with a Consent (prior greed to) Court Order by the parties on a day stated in the Orders before the Orders need to be complied with.  Furthermore, her Honour is not a Judge of the Appeals Division.

3.Carter J in error, and/or abuse of power, and/or attempt to pervert justice, claims a right to deny a person, the applicant, a right to natural justice.  That is, denies an applicant a right to make an application against any person/s that have done the applicant a wrong by claiming a right to limit the time taken to seek that right to natural justice after admitting there is no statue of limitations for the exercising of such a right.

4.Carter J in error, claims a right to omit evidence of probability claiming a requirement of proof of claims and not put appropriate weight on the evidence available of probability for a s.118 Leave application.  That is, deny evidence of probability of actions were done in Contempt of the Court and Court Orders, actions were done to deny an applicant justice, and actions had occurred that gave the applicant cause to amend and/or withdraw applications where the relief sought was no longer sought.

5.Carter J in error, and/or abuse of power, attempt to pervert justice, claims a right to dismiss evidence due to a personal inability to think (have a crystal ball) of what additional evidence could be presented.

6.Carter J in error claims a right to defeat a Law created by an Act of the Parliament of the Commonwealth giving the Family Court Jurisdiction of Constitutional Writs by claiming the Attorney-General is required to give notice of enjoinment before the application for Constitutional Writs has been filed, thereby before a case has been started.

Background

6.The father lived in a de facto marriage relationship with [Ms Rose]  (“the mother”) prior to their final separation in 2002.  They have two children, now aged 12 and 9.   

7.During a period of separation between the father and mother in 1999, Registrar Fitzgibbon made consent orders providing for the father to have regular contact with the children.  We will refer to the terms of these orders later in these reasons.  These orders were superseded by (interim) contact orders, also made by consent, on 18 December 2002, following the final separation of the parties.  At the same time the father was given leave to withdraw a number of contempt/contravention applications he had brought against the mother and her solicitor. 

8.In February 2003, Joske J made an order pursuant to s 118(1)(c) of the Act restraining the father from commencing further proceedings without leave of the Court. At that time the substantive proceedings between the father and mother concerning the children were still pending. The father now contends there was no basis for the making of the order pursuant to s 118(1)(c); however he did not appeal that order. It is too late for him to seek to impugn it now, and nothing to which we have been referred suggests any basis on which the order was, or remains, other than a valid order.

9.The substantive proceedings were determined in January 2004, when Mushin J made orders for the children to live with the mother and have no contact with the father. Mushin J also made an order restraining the father from making any application for “parenting orders of any sort whatsoever” relating to the children for a period of three years. The father sought leave to appeal the order of Mushin J, but withdrew his application. In his submissions before us, the father argued that Mushin J lacked power to make the order restraining him from commencing further proceedings, since he was the respondent in the substantive proceedings and the provisions of s 118(1)(c) permit the Court only to restrain an applicant from instituting further proceedings, not a respondent. Assuming, without deciding, that the father’s proposition is correct, it remains the case that he chose not to pursue his attempt to appeal against the order. Even had he successfully appealed the order, he would still have required leave to institute further proceedings because of the earlier order of Joske J.

10.For the sake of completeness we should also observe that although the three year time period prescribed in the order of Mushin J has expired, and nothing turns on it for present purposes, we have recently expressed reservations as to the jurisdictional basis for making orders under s 118(1)(c) which do not contain provision for applications to be made by leave of the court. (See Watson & Morton [2007] FamCA 497)

11.In the months following the orders made by Mushin J in January 2004, the father filed various applications seeking permission to commence further proceedings.  One of these sought permission to allege contempt by Mushin J himself.   These applications came before Bryant CJ in December 2005.  The Chief Justice dismissed the application relating to Mushin J and otherwise reserved her decision.  The father’s appeal against her Honour’s order relating to Mushin J was dismissed by the Full Court in June 2006.  Bryant CJ dismissed the balance of the father’s applications on 22 August 2006.  (The father has since applied to the High Court for special leave to appeal the June 2006 decision of the Full Court, but has not sought to appeal the orders made by the Chief Justice in August 2006.  In his oral submissions the father asked us, in effect, to set aside the order of the Full Court made in June 2006, which clearly we cannot do.)

12.On 15 August 2006, the father had filed an application in which he sought leave to make an application for a Writ of Mandamus against Bryant CJ (“the mandamus application”).  The purpose of the mandamus application appeared to be to ensure the delivery of judgment in relation to the matters that had been heard in December 2005.   As already noted, the Chief Justice delivered her judgment a few days after the mandamus application was filed.

13.Very shortly after the Chief Justice delivered her judgment in August 2006, the father filed the four applications which are now the subject of this appeal. 

14.The first of these applications sought leave to withdraw the mandamus application and in lieu sought a Writ of Prohibition.  The stated intention of the latter (“the prohibition application”) was to ensure that the Chief Justice was disqualified from hearing further applications on “the grounds of demonstrated bias and acts other than good behaviour pursuant to the applicants rights at law”.  

15.Another of the father’s applications sought leave to bring proceedings against the mother for contempt pursuant to the Act and the Crimes Act 1914 (“the contempt application”). The documentation filed in support of the contempt application indicated that the father proposed to allege conduct by the mother constituting four instances of contempt of the 1999 contact orders. This conduct was said to have occurred on 15 November 2002 and 29 November 2002. The father had filed applications in November and December 2002 seeking to have the mother and her solicitor dealt with for their alleged conduct on these occasions, but had withdrawn the applications in December 2002. He nevertheless sought to agitate these same matters again in the proceedings before Bryant CJ, but his application for leave to bring further proceedings was refused.

16.Carter J heard submissions in relation to the mandamus, prohibition and contempt applications on 3 October 2006.  Her Honour reserved her decision. 

17.The following week, the father filed two further applications (“the certiorari applications”.)  The first of these sought leave to file an application:

for Orders of this Court consistent with a Writ of Certiorari, that is an Order to Quash the Orders of Mushin J made 27/01/2004 and an Order to Quash/Revoke any and all Orders of Division 11 type Orders made by any State Court naming [Mr McNamara].  Namely all and any Intervention Orders naming and against [Mr McNamara] made by a Magistrates Court of Victoria.

18.The second application sought leave to file an application for “a Writ of Certiorari for an Order to quash the orders of Bryant CJ made on the 22/8/2006 … pursuant to s 39B(1EA)(d)(i) of the Judiciary Act 1903”.

19.Carter J heard submissions from the father concerning the certiorari applications on 1 November 2006 and again reserved her decision.  On 17 November 2006, her Honour delivered judgment in relation to all of the father’s applications. 

The trial Judge’s reasons for judgment

20.In a detailed and carefully reasoned judgment, Carter J first outlined the relevant background of the proceedings.  She identified the applications before the Court and noted the “evidence” filed in support of each of them.  Her Honour quite properly observed that the father’s affidavits “consisted rather of submissions and allegations than evidence and at times some of the allegations were couched in quite vituperative terms”.  She went on to note that she had not permitted these deficiencies to interfere with her adjudication.  She also noted that whilst she had difficulty in understanding the thrust of the father’s submissions, she had nevertheless been able to obtain clarification from him when needed. 

21.Her Honour then turned to submissions made by the father relating to concerns he had about the manner in which the mother had obtained intervention orders against him in the Magistrates Court of Victoria. The gravamen of his submission was that in seeking those orders the wife’s counsel had improperly relied upon evidence the father had given in the proceedings before Mushin J in January 2004 under the protection of a Certificate granted pursuant to the provisions of s 128 of the Evidence Act 1995. Her Honour correctly noted that there was no application before her directly dealing with this matter.

22.Her Honour then proceeded to identify (correctly in our view) the legal principles relevant to an application for permission to commence proceedings where an order had been made pursuant to s 118(1)(c) of the Act. In particular, she referred to Rule 11.05 of the Family Law Rules 2004 and noted that the onus fell on the father to satisfy the Court there was a reasonable likelihood of success in the event he was to be granted leave to commence proceedings. She drew attention to the decision of the Full Court in Zabaneh & Zabaneh (1986) FLC 91-766, where the clear policy considerations supporting s 118(1)(c) and the relevant Rules of Court were identified. She also reminded herself that “it is a serious matter to deprive a person of access to the courts of law”, a point which her Honour observed had been made by Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29.

23.Her Honour then turned to the applications for mandamus, certiorari and prohibition.  She noted that whilst the father had filed an application seeking to withdraw the application for mandamus, it would be appropriate (for reasons she later proceeded to identify) to dismiss that application.  Her Honour went on to discuss briefly the functions of writs of mandamus and prohibition.  She noted the relevant provisions of the Constitution and the Judiciary Act 1903 and in particular s 38(e) of the Judiciary Act which provides that the High Court has exclusive jurisdiction in “matters in which a writ of Mandamus or Prohibition is sought against an officer of the Commonwealth or a federal Court.”  Her Honour noted that the expression “an officer of the Commonwealth” extends to judicial officers.  (Authority for this proposition was not stated, but can be found in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. (1949) 78 CLR 389 at 399.)

24.Her Honour then discussed the application of s 39B(1EA) of the Judiciary Act 1903, on which the father had placed particular reliance in arguing that a single Judge of the Family Court of Australia had authority to issue prerogative writs against another Judge of the same court. Her Honour acknowledged that subparagraph (d)(i) of s 39B(1EA) invests the Family Court of Australia with jurisdiction in relation to “any matter in which a person who is or was a party to the proceeding seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related civil proceeding decision”. However, her Honour went on to point out that the jurisdiction is confined to orders preventing the disclosure of information in proceedings “where the disclosure is likely to prejudice national security”. Her Honour therefore concluded that the father’s reliance on s 39B(1EA) was misconceived. We are of the same view.

25.Her Honour then turned to consider the jurisdiction of the Family Court of Australia as a superior court of record.  She noted that “the Court has an inherent jurisdiction and some inherent powers”.  However, her Honour went on to observe that the court, as a creature of statute, does not have an unlimited jurisdiction.  As authority for this well settled proposition, she cited the following portion of the judgment of Wilson and Dawson JJ in Re Ross-Jones; Ex parte Green (1984) FLC 91-555 at 79,491:

The jurisdiction of the Family Court is statutory. It is a federal court and its jurisdiction is defined, pursuant to sec. 77(i) of the Constitution, by the Family Law Act, which is a law made by Parliament under the relevant powers confided to it by sec. 51 of the Constitution. Those powers are to be found principally, if not wholly, in sec. 51(xxi), which speaks of “marriage”, and sec. 51(xxii), which speaks of “divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants”. Not only do the relevant legislative powers of the Parliament constitute the ultimate source of the jurisdiction conferred upon the Family Court but they also define the limits of the jurisdiction which can be conferred upon that Court.

26.Her Honour then went on to make specific reference to ss 4(1), 31, 33, 34 and 39 of the Act with a view to identifying the extent of the statutory jurisdiction of the Family Court of Australia. The provision of most potential relevance to these proceedings is s 34, but before discussing its effect, her Honour for the sake of completeness also noted that in Warby & Warby (2002) FLC 93-091, the Full Court had determined that the Family Court of Australia has an “accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part”.

27.Her Honour then turned her attention to consideration of the significance of s 34 of the Act, which is in the following terms:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.

28.Her Honour recorded that in applying the provisions of s 34 she regarded herself as bound by the decision of the Full Court in Bizannes & Bizannes (1977) FLC 90-313. In that case the Full Court held:

Even if there were power under the Constitution to do so it is difficult to read sec. 34 as giving to Judges of the Family Court power to issue writs of prohibition against any other Judge of that Court. The clearest expression would be needed before deciding that such a power was created, since prohibition is normally issued by a superior court to an inferior court.

29.Her Honour also referred to R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 453 where Isaacs J said:

[T]he inherent nature of prohibition or mandamus requires that the officer [against whom the writ is sought] must be someone not a member of the tribunal to which the application is made, or superior to it. 

30.Carter J neatly summarised the effect of the authorities in this way: “Put simply these constitutional writs are supervisory in nature, directed to ensure that an office holder exercises and does not exceed jurisdiction”.  Her Honour also pointed out that “even if a judge is sitting alone, that judge is still exercising the jurisdiction of the Court, rather than jurisdiction granted to that Judge as an individual”.  She therefore concluded that a single Judge of the Family Court of Australia would not have authority to issue a writ of mandamus or prohibition against the Chief Justice, or for that matter any other Justice of the Family Court of Australia.  

31.For the comprehensive reasons she had given, her Honour determined that it was unnecessary to deal with the other submissions made by the father on this issue, since the foreshadowed prohibition application “would be doomed to failure”.  Her Honour was clearly right in so holding and was also right in dismissing the father’s application seeking leave to apply for mandamus, rather than merely allowing him to withdraw it.

32.Her Honour next directed her attention to the father’s applications for certiorari.   She referred to the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 where it was said that certiorari is “a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal”. (The emphasis was added by her Honour.)   The High Court also held that certiorari is “not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made”.

33.As her Honour correctly pointed out, her reasoning in relation to the mandamus and prohibition applications “applies with equal force to certiorari” and she therefore concluded that the certiorari applications were also doomed to failure. She also concluded that the father’s reliance on s 39B(1EA) of the Judiciary Act 1903 was, once again, misconceived.

34.Her Honour next dealt with the second element of one of the certiorari applications by which the father sought an order to “Quash/Revoke” intervention orders against the father made in the Magistrates Court of Victoria. In doing so, her Honour explained the interface between orders made under Part VII of the Act and family violence orders (as defined in the Act) made under state legislation. We do not consider it necessary to summarise her Honour’s careful analysis of the relevant legislative scheme. It is sufficient to say that her Honour concluded that whilst it was open to the Family Court to make an order under Part VII of the Act that would be inconsistent with (and prevail over) the intervention order, it did not have the power either to “quash” or “revoke” such an order. It is clear beyond doubt her Honour was right in so concluding and hence was also right to refuse the father leave to bring the application he had foreshadowed.

35.Her Honour then proceeded to consider at length the father’s application for leave to institute contempt proceedings against the mother.  The material provided in support of the application indicated that the conduct complained of had occurred on 15 November 2002 and 29 November 2002.  The father asserts he was entitled to have contact (as it was then called) with the two children on each of those days.  On the first occasion he was not permitted to have contact, but on the second occasion, after some delay he was able to take the children away with him.  The police were present on both occasions. 

36.The mother’s alleged conduct on each of these days was said to fall into two different categories.  The first was that on each occasion she:

made a flagrant challenge to the Courts authority to make Child Contact orders by claiming authority to change the conditions imposed by the Order to Victorian Police to gain Police assistance to prevent Court Ordered Child Contact.  

37.The second category related to the denial (or delay in allowing) contact.  It was asserted that on 15 November 2002 the mother “prevented all of the Court Ordered Child Contact Ordered” and that on 29 November 2002 she had prevented contact “for a period”.  In both instances it was alleged that the mother’s conduct constituted “a flagrant challenge to the authority of the court”.  

38.Her Honour referred to the foreshadowed applications in the first category as “interference contempts” and those in the second category as “disobedience contempts”. She noted that she had clarified with the father that the interference contempts were proposed to be brought pursuant to s 112AP(1)(a) and the disobedience contempts were to be brought under s 112AP(1)(b). Section 112AP(1)(a) applies to a contempt that does not constitute a contravention of an order under the Act and s 112AP(1)(b) applies to a contempt that constitutes a contravention of an order and involves a flagrant challenge to the authority of the court.

39.Her Honour then went on to refer to authorities setting out the relevant legal principles relating to contempt.  She cited at length from the recent decision of this court in Abduramanoski & Abduramanoska (2005) FLC 93-215 and made reference also to an unreported decision of Carmody J in M & M [2004] FamCA 843.

40.Having referred to the relevant legal principles, her Honour went on to record that the proposed contempt applications related to the consent orders made in November 1999.  Those orders had been made when the parties were first separated, but had not been discharged when they reconciled.  The mother had made an application on 17 October 2002 seeking the discharge of the orders but her application had not been determined by the time the alleged instances of contempt occurred in the following month. 

41.Her Honour then noted that the contact order relevantly provided:

That the father have contact with the children [K], born [in] December 1994 and [A] born [in] December 1997, each weekend from Friday to Sunday inclusive.

42.Her Honour further noted that this order could not be looked at in isolation and she drew attention to paragraph 2 of the orders which provided “that the contact take place at the residence of the mother or at a place agreed to by the parties from time to time.”

43.Her Honour then found that the mother was aware of the orders and was bound by them as at the dates of the alleged contempts. (It will be understood that the mother has yet to be heard on this point, since the father’s application for leave to institute proceedings was heard ex parte.)

44.Her Honour next considered the evidence likely to be available relating to the alleged interference contempts.  The evidence from a police officer suggested that the position of the mother on 15 November 2002 had been that the contact provided for in the 1999 order could only proceed with her agreement.   The Police officer took the view that as the parties were not in agreement about contact, the father should leave the property in order to prevent a breach of the intervention order – which he duly did.

45.Her Honour then went on to consider whether or not the evidence would be sufficient to found the proposed interference contempt proceedings.  In dealing with the events of 15 November 2002, Her Honour said:

145.As can be seen the orders made 30 November 1999 did not set out the time at which contact should commence, or conclude.  If the order is read literally contact could be said to be due to commence at 12.01 on the morning of each Friday.  This would be absurd.  Further, the place where contact was to take place was left to the agreement by the father and to the mother from time to time.

146.During the course of the proceedings before me on 3 October 2006 I pointed out to the father that it appeared to me on a preliminary basis that if the order did not say when contact was to commence, it would be very difficult for him to be able to establish that an order had been breached.  The father responded that I was:

“Seeking detail to be included in an order that needed no detail because the time of the contact sought was reasonable and therefore, yes, the time for the contact to be sought was outside a reasonable hour, like, say, 2 o’clock in the morning on Friday – 2am on Friday morning, then I would concede that, yes, Ma’am you have the branch by the right end. … But, Ma’am, the time that contact was sought was 4pm.  This was after school, and in actual fact, there had been contact on Fridays at earlier times than that, being midday, and that was why the order was worded the way it was, so as to allow flexibility in contact. …”

147.I appreciate that this was said in the course of submissions and was not evidence.  I also note that [a Senior Constable’s] evidence was that both the mother and father agreed that the father had been seeing the children on “Friday, Saturday, Sunday, for some period of time prior to that day.”  Further, it had been the usual practice for the father to attend at the mother’s home on that particular day (Friday).

148.Accordingly, and given that the order itself did not state when contact should commence, it is obvious that the father and mother from time to time would need to reach agreement as to when contact would start, and on the basis of the evidence, the starting time varied from time to time.

149.As I have said, [the Senior Constable] gave evidence that there was a dispute over whether the contact should  proceed on 15 November 2002 and there was an allegation that contact was supposed to be by agreement only.  It is fair to assume that this latter allegation was made by the mother.  I further note her evidence as transcribed was that she asked the father to leave to prevent a breach of the intervention order, given that both parties could not agree to contact on that day.

150.It is obvious that “agreement” as to contact was necessary, given the lack of definition in the orders as to the commencement time for the contact and the place where contact should take place. 

151.The mother did not, as alleged, claim she had the authority to change the “conditions” in the order, nor could it be said that she acted “as if there was no court order”.  Nor could it be said that this was done “to gain police assistance” to commit a further offence in deliberate breach of the order.  The evidence simply does not support such an allegation.

152.The evidence would merely support a finding that the father and the mother were obliged to reach agreement from time to time both as to when contact should commence and where it should take place.  This could not be said to be an interference contempt, rather was it necessary because of the lack of specifics in the orders of 30 November 1999.

153.In summary, in my view, the acts complained of by the father are not capable of founding contempt proceedings against the mother.

46.Her Honour then moved on to review and discuss the evidence relating to the events of 29 November 2002.  She concluded:

157.As was the situation in the case of the incident of 15 November 2002 the mother did not as alleged, claim she had the authority to change the “conditions” in the order, nor could it be said that she acted “as if there was no court order”.  Nor could it be said that this was done “to gain police assistance”, to commit a further offence in deliberate breach of the order.  The evidence simply does not support such a finding.  The evidence would merely support a finding that the father and the mother were obliged to reach agreement from time to time both as to when contact should commence and where it should take place.  This could not be said to be an interference contempt, rather was it necessary because of the lack of definition in the orders of 30 November 1999.

158.On neither occasion was there any challenge to the Court’s authority nor could the acts complained of by the father constitute the basis of contempt proceedings against the mother.

47.There may be merit in the father’s submission that it was unnecessary for the mother’s consent to be obtained before he could exercise at least some contact on the day in question.  It is, of course, unfortunate that the parties asked the Court in 1999 to make an order that left so much room for disputation, but the fact remains that the father had an entitlement under the terms of the order to have the children with him for part of the Friday in question.  The only matter on which the agreement of the mother was expressly required by the terms of the order was the exercising of the contact at a place other than at the mother’s home.  We accept it could reasonably be argued on the part of the mother that her consent was required concerning the time at which contact was to commence (which is what her Honour found), but the mother’s consent was not a necessary prerequisite to contact commencing at some time on the day in question.  Nevertheless, it must be kept firmly in mind that the father would be required to make out his case on the criminal standard of proof and the deficiencies of the 1999 orders would undoubtedly have presented the husband with difficulty in proving his case to the requisite standard.

48.Having made this point, we nevertheless consider her Honour was justified in determining that the acts about which the father complains were incapable of founding the proposed interference contempt applications.  Her Honour properly found there was no evidence to support the proposition that the mother had claimed she had the authority to change the “conditions” in the order.  She was also right to conclude that on neither occasion was there any challenge to the Court’s authority, especially when one considers the deficiencies of the 1999 orders.  We might also add that we have serious doubt whether the father could be permitted to pursue two different applications for contempt arising out of what is essentially the same set of circumstances. 

49.Having dealt with the interference contempts, her Honour turned her attention to the disobedience contempts.  She reminded herself that the father was required not only to establish that there had been a contravention of the order, but also that the contravention involved a flagrant challenge to the authority of the Court.   She then went on to review the evidence on which the husband could rely in the event he was given leave to pursue the application.

50.It is convenient to deal first with the evidence relating to the contempt said to have occurred on 29 November 2002.  At paragraph 172 of her judgment, her Honour recited the evidence of a police officer who was in attendance when the father sought to exercise contact with the children.  The evidence of the officer indicated that having read a copy of the relevant orders, he advised the mother that the father was entitled to “access”, whereupon “she released the children into his custody”.   Although he was able to exercise contact with the children that day, the father still alleges the mother contravened the order “for a period”. 

51.In dealing with this alleged contempt, her Honour made remarks at paragraphs 176 and 177 of her judgment to similar effect to those we have cited earlier about the lack of “specifics” in the 1999 order and the necessity for the parties to “agree from time to time both as to when contact should commence and where it should take place”.   We have already commented on this aspect of her Honour’s reasoning.  It is unnecessary to say more than that we entirely agree with her Honour that there would be no prospect of the husband’s proposed contempt application succeeding insofar as it dealt with the mother’s conduct on 29 November 2002.  The fact the order was silent as to the time at which contact was to commence would be fatal to the foreshadowed application in circumstances where the father had been permitted some contact on the day in question, albeit not quite as early in the day as he would have preferred. 

52.We turn now to her Honour’s treatment of the events of 15 November 2002.  It is convenient to set out in full her Honour’s review of the evidence to support the proposed contempt application.  Commencing at paragraph 161 her Honour said:

161.The evidence in support is set out in par (2) of the husband’s affidavit (Attachment 2 to Document 156).  It was alleged that the contravention was “caused by the engaging of a Victorian police officer to instruct the applicant to leave the Ordered contact area without any contact.”  In further support of his allegation the father points to the evidence given by [the Senior Constable] at the hearing before Mushin J on 21 January 2004, transcribed at p 216 as follows:

“As both parties could not agree to access on that day, I asked [the father] to leave to prevent a breach of the intervention order.  He agreed and did leave the address.”

162.The father went on to say in his affidavit that as a consequence contact could not occur and further that the Senior Constable was willing and available to continue to her evidence. [sic]

163.There is no evidence that the mother “engaged” a Victorian police officer to do anything.  It may well be that the attendance of the police on the day in question was as a result of the mother’s request although this was not stated by the Senior Constable.  A perusal of the transcript indicates that information had been received which required her and some other officer or officers to attend the mother’s address in relation to a domestic dispute which was occurring at that place.  Nor is there any evidence that the father was directed to leave the premises.  The evidence is that he was requested to do so, in order to prevent a breach of the intervention order and further that he agreed to do so.

164.It is also clear from the transcript that it was not altogether clear to [the Senior Constable] what the position really was as to the father’s entitlement to be at the mother’s residence, or indeed as to what contact he was entitled to have.  This emerges from her evidence:

“I also advised both parties to have the intervention order and the Family Law Court order paperwork clarified and to have that with them at all times so that if this issue came up again, that police would be able to make a clearer decision as to what the agreement was and therefore whether a breach of the intervention order had occurred.  On this occasion it was decided that there was no breach of the intervention order, no charges were laid against either party, and no further action was taken other than asking [the father] to leave the address.”

165.In summary therefore it is perfectly clear that the father’s allegation against the mother is not made out.  As I have said there is no evidence that the mother “engaged” a police officer “to instruct” the father to leave the premises, nor indeed would the mother have the power to do so in my view.  All that happened was that the father was requested to leave and he did so.  In those circumstances the evidence would not support a finding that the mother contravened the order.

166.If however I am wrong in that conclusion, it could not be said in the circumstances and on the evidence that the contravention involved a “flagrant challenge to the authority of the Court”.  As the Full Court said in Ibbotson and Wincen (1994) FLC ¶ 92-496, the use of the term “flagrant challenge” to the authority of the Court is intended to underline the exceptional or striking nature of the contravention in question and thus to differentiate it from what might be described as the general run of breaches which are intended to be dealt with under s 112AD.

167.Nor could the wife’s actions be said to have been “glaring, notorious or scandalous”, challenging or calling into question the authority of the Court (see Rutherford v Marshall of the Family Court of Australia (1999) FLC ¶ 92-866).

168.Further, as I have said elsewhere, the orders do not direct when contact is to commence (or conclude) or where it should take place.  It might be possible to infer that contact on 15 November 2002 was due to commence at around 4pm, however, in my view, an inference would not be sufficient.  The father is required to establish the breach beyond reasonable doubt.  “Uncertain inferences from inexact proofs will not support such a charge” (Consolidated Press Limited v McRae (1954-5) 93 CLR 325, 333).

169.In summary, the acts complained of by the father do not support the charge alleged against the mother.

53.We have some concerns about portion of her Honour’s treatment of this issue.  It needs to be recalled that the application before her Honour was an application for leave to commence contempt proceedings and not the hearing of the application for contempt itself.  It was, of course, necessary for her Honour to conduct some review of the evidence available to determine whether or not the proposed application had a reasonable likelihood of success.  We also accept there were some assertions made by the father in his affidavit that do not bear close scrutiny.  We perceive, however, that her Honour may have concentrated on those imperfections at the expense of recognising that it would be open to a court to find that the mother had indeed contravened the order.  The father wanted contact on the day in question and attended at the mother’s home to exercise it.  The mother did not allow him to have contact.  The precise way in which this was achieved does not seem to us to be material, unless it were to be asserted that the mother indicated that she would be amenable to the contact commencing somewhat later that day.  There is no evidence that this is the position she adopted. 

54.Whilst we have reservations about her Honour’s treatment of the evidentiary matters, in our view there can be no doubt that her Honour was fully justified in the findings she made at paragraphs 166 and 167 of her judgment.   On no view of the evidence could it be thought that the mother’s actions on this day constituted a “flagrant challenge to the authority of the court”.  At the very most they amounted to a contravention, for which an alternative remedy was available to the father.  Her Honour was therefore right to refuse the father leave to bring an application which was clearly doomed for failure.

55.Her Honour went on in her judgment to deal with issues relating to the Crimes Act 1914 and considered whether or not the alleged contempts were offences against a Commonwealth law. In view of the conclusions we have already reached, it is unnecessary for us to make any comment in relation to these matters.

56.Her Honour concluded her judgment by detailing the history of earlier contempt and contravention applications pursued by the husband in relation to the events of 15 and 29 November 2002, including some which were dealt with in the proceedings before Bryant CJ.  Again it is unnecessary for us to dwell on this in light of the conclusions we have reached.  It is sufficient to say that we entirely agree with the view expressed by her Honour at paragraph 206 of her Judgment that the proceedings the father wishes to pursue would constitute an abuse of the Court’s process. 

57.For all of these reasons, we conclude that her Honour was right to dismiss each and every one of the father’s applications.  There is no merit in the appeal and it will therefore be dismissed.

Application to adduce further evidence

58.We have not formally ruled on the father’s application to adduce further evidence.  The “evidence” was contained in an affidavit that was almost an inch thick.  It ended with the following plea :

It might be in the best interest of Justice; the Marshal of this Honourable Court or the Attorney General be sought by the Honourable Judges, of this Court of Appeal, a proper enquiry and prosecution be caused to undo the international disrepute this Honourable Court has been brought into by the Judges of this Court.

59.We can see no basis for allowing the application to adduce further evidence.  The father’s affidavit reveals no evidence which, if accepted, would demonstrate that the order under appeal is erroneous, as the High Court (per McHugh, Gummow and Callinan JJ) suggested in CDJ v VAJ (1998) FLC 92-828 at [109] would be required for it to be admitted pursuant to s 93A(2).

Orders

60.For these reasons the formal orders of the Court will be:

1.   That the application to adduce further evidence be dismissed.

2.   That the appeal be dismissed.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.  

Associate: 

Date:  1 June 2007