Murray & Murray

[2007] FamCA 9

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY [2007] FamCA 9

FAMILY LAW – APPEAL – FROM DECISION OF A FAMILY COURT JUDGE - CONTEMPT – CONTRAVENTION OF COURT ORDER – Failure of appellant to appear at first instance – Application dismissed by trial Judge in circumstances where there was a reasonable explanation for applicant’s failure to appear – Denial of natural justice - Appeal allowed.

FAMILY LAW – APPEAL – CHILDREN – INDEPENDENT CHILDREN”S LAWYER – FROM DECISION OF A FAMILY COURT JUDGE – Application for dismissal of Independent Children’s Lawyer – Discretionary decision – Reasons for dismissal were open to trial Judge -  Appeal dismissed.

FAMILY LAW – APPEAL – COSTS CERTIFICATE – Appellant successful on question of law - Appellant granted permission to apply for a certificate under S 9 of the Federal Proceedings (Costs) Act 1981.

Family Law Act 1975 (Cth), Part VII Division 13A, S 70NAA(1), Part XIIIAA, Part XIIAB, S 112AP, S 117
Federal Proceedings (Costs) Act 1981(Cth), S 9

Wilkes (1981) FLC 91-060
Ibbotson and Wincen (1994) FLC 92-496
Sahari and Sahari (1976) FLC 90-086
Lloyd and Child Representative (2000) FLC 93-045

APPELLANT: MURRAY

RESPONDENT: MURRAY

FILE NUMBER: PAF 4085 of 2002

APPEAL NUMBER: EA
EA 69
96 of
of 2005
2005

DATE DELIVERED: 19 January 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Finn, Coleman & May JJ

HEARING DATE: 7 December 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATES: 19 May 2005, 28 January 2005, 8 August 2005

LOWER COURT MNC:

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

SOLICITOR FOR THE RESPONDENT: No appearance by the respondent

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 Murray and Murray. 

Orders

1. That the appeal against Orders (1) and (2) of the orders made by the Honourable Justice Flohm on 28 January 2005 is allowed, and those orders are set aside

2. That the appeal against Orders (4) and (5) of the orders made by the Honourable Justice Waddy on 19 May 2005 is allowed, and those orders are set aside.

3. That the appeal against  Order (5) of the orders made by the Honourable Justice Purdy on 8 August 2005 is dismissed.

4. That there be no orders as to costs in relation to the above mentioned appeals provided however that the appellant is at liberty to make written application to the Full Court for a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 in relation to costs incurred in relation to the appeal against the orders of the Honourable Justice Waddy of 19 May 2005.

FAMILY COURT OF AUSTRALIA AT

Appeal Number:
File Number: PAF 4085 of 2002

MURRAY

Appellant

And

MURRAY

Respondent

REASONS FOR JUDGMENT

Background

1. The appellant appeals against orders made by three Judges relating to proceedings in this Court where he asks for orders in relation to a child, who is the daughter of the late Mr Murray. The appellant is the cousin of the late father.

2. For a period of time the child lived with the appellant and his wife. She has lived with her uncle, the respondent the deceased father’s brother, since 2 December 2003. Despite orders in relation to contact between the appellant and the child there have been some difficulties and he explained to us that he has had no contact with the child since December 2004.

3. At the hearing of the appeals there was no appearance by the respondent to the appeal,  or by the Independent Child’s Lawyer, who is David Duncombe.

4. A letter was received by the Court and also sent to the appellant indicating that the Independent Children’s Lawyer is not funded by the Legal Aid Commission to appear in relation to the appeal proceedings and accordingly there would be no appearance on behalf of the Independent Children’s Lawyer. That letter was first sent to the appellant on 12 December 2005 and subsequently provided to the Court. The solicitors for the respondent wrote to the appellant and to the Court on 4 December 2006 providing notice that they had received instructions not to attend at the hearing of the appeals.

5. The appeals are from orders made by three Judges and can be described as falling into two categories. First in a Notice of Appeal filed 26 October 2005 there is an appeal from orders of Flohm J made 28 January 2005 being orders (1) and (2) and an appeal from orders made by Waddy J on 19 May 2005 being orders (4) and (5). The other appeal is from order (5) of orders made by Purdy J made on 8 August 2005 and is contained in a separate Notice of Appeal also filed 26 October 2005.

Appeals from Orders of Flohm J & Waddy J

1. The background to these appeals is that the appellant filed an application for contempt against the respondent on 15 December 2004. Contained in the application is the statement of the alleged contempt as follows:

   ‘There have been 41 instances of contempt in relation to ordered telephone contact from the above date to the present.

   There has been one failure of weekend visit contact.

   There has been a failure to provide medical reports and school reports as order [sic].

   Details of these instances of contempt for the order are listed in the attached affidavit.’

2. The affidavit filed on 15 December 2004 set out in some detail the history of how the child  came to be in the care of the respondent and provided a list of the dates that the appellant did not receive telephone contact.

3. The appellant explained to us in his lengthy written submissions and orally that he did not appear on 28 January 2005, the return date for the contempt application, because he did not know or understand that was the date when he was to appear. There were various reasons for this including that he did not appreciate how Court documents should be read, that when he filed the material the person who received his documents in response to a question of his said something to the effect that he would be informed as to when the matter would be heard and thirdly, that when he served the documents on the solicitor for the respondent the solicitor asked him when the return date was and he told him that he did not know. By the time he served the solicitor and the Independent Children’s Lawyer he had no remaining copies for himself of the application as marked by the Court on filing.

4. In addition, the appellant asserts that in the week following the filing of the application when he attended the Court he asked a Court Officer when his application would be heard.  The appellant maintains that he was told that the Court would advise him when a date had been fixed. The first the appellant knew of the hearing date was when the solicitor for the respondent sent him a facsimile telling him that the matter had been heard in his absence and had been dismissed.

5. The order of Justice Flohm on 28 January 2005 is as follows:

   ‘1.That the Contempt Application filed on 15 December by [the applicant] is dismissed in circumstances where there is no attendance at Court today by or on behalf of the applicant.

   2.That the respondent’s costs of today are reserved to 11am on 10 February 2005.’

6. The appellant then filed another contempt application on 2 February 2005. In that he complained:

   ‘There have been 46 instances of contempt in relation to ordered telephone contact from the above date to the present.

   A failure to deliver the child for her week long visit in January of 2005.

   There has been a failure to provide medical reports and school reports as order [sic].

   Details of these instances of contempt for the order are listed in the attached affidavit.

   Dates to allege contempt in accompanying affidavit.

7. After a procedural hearing that application was set down before Waddy J on 19 May 2005.

8. The order made by Waddy J from which there is the appeal is:

   ‘4.       Formally dismiss the application of 2 February 2005.

   5.That the applicant is to pay two thirds of the respondent’s costs as agreed or taxed.’

9. The reasons for judgment demonstrate that Waddy J had considerable appreciation of the background to this matter. His Honour explains that consent orders were made on 3 December 2003 and on 24 December the child left the appellant’s care on the basis that she was to have contact one weekend a month, telephone contact each week and that he be provided with medical reports, if any, and school reports. His Honour then recorded as follows:

   14.‘The matter then had a chequered history.  There was sporadic telephone contact.  There was some monthly contact up unto and including, I think, November 2003.  The telephone calls ended at the end of October 2004.

   15.[The applicant]t then brought contempt proceedings, which were filed on 15 December 2004….

   16.That application for contempt was returnable on 28 January 2004 before my sister Flohm J.  The applicant, for some reasons of mix up, did not attend on that day. [The respondent] had done so, and he applied for the application to be dismissed.  That application was dismissed by Flohm J.  Obviously an appeal cannot be brought to a single Judge of this Court: it must go to a Court of Appeal. 

   17.However, the appellant, ignorant of that fact until, I think, today, filed a new application for contempt, adding several telephone calls since, and a failure to deliver the child for her week long visit due in January 2005, an allegation not made previously.

   JURISDICTION

   18.Mr Foster took the point, that because the original matters had been dismissed I had no jurisdiction to hear them.  I think that submission is correct.  I therefore declined to hear those. 

   19.But, as that did not affect the other matters of telephone calls and the January contact, I allowed [the applicant] to proceed on those matters.

   …

   APPLICATIONS

   22.Having been given the extra time, and nothing else to do in the mean time, Mr Foster developed another legal point.  It was that each application was fromed [sic] as an application for contempt in each case which would involve a flagrant challenge to the authority of the Court or a serious disregard to the respondent's obligations under an order.

   LAW AMENDED

   23.The law has been amended in the year 2000 and some subsequent amendments to that, and the enforcement of parenting orders made under part VII of the Act are now governed by other provisions of part VII of the Act. 

   24.Division 13A, which starts with s 70NB, deals with the consequences of failure to comply with orders and other obligations that affect children. Parliament has elected to set up between there and s 70NR, the end of division 13A, a complete code for the enforcement of orders that affect children. It is complex, it is verbose, but it is comprehensive.

   25.Consequently, Mr Foster submitted that the applications were incompetent and therefore I could not proceed on them in their present form.

   …

   27.… Mr Foster asked that the application for contempt filed 2 February 2005 be dismissed.  I believe under the present state of the law I am bound to do that and I do not have jurisdiction to hear them as framed.’

10. The appellant asks in effect that the orders made by Flohm J and Waddy J be discharged, and necessary orders be made to allow these applications for contempt to be heard. During the course of his oral submissions the appellant did tell us that he had instituted proceedings for contravention and that directions have been made that those proceedings be heard at the same time as the other issues concerning the child.

Conclusions

1. Although it may at first sight be difficult to understand how the appellant did not realise that his contempt application was to be heard on 28 January 2005, it is explicable by reason of the fact that no staff member at the Court apparently explained to him that the Court date was 28 January.  The matter is made more complicated by the appellant’s not retaining a copy of the application himself and subsequent discussion with court staff and the solicitor for the respondent.

2. In relation to the appeal from Flohm J it is clear that the appellant did not have the opportunity to be heard, and that his application was dismissed not on its merits but because of a failure on his part to appear – a failure which he has been able to explain. Without more it is clear to us that to deny the appellant an opportunity to be heard on his application would be a denial of justice to him.  Although Flohm J was not to know the circumstances behind his non appearance it would be appropriate to allow the appeal to give him an opportunity to have this application heard, if he wishes to proceed.

3. Although it was made clear by the Full Court in Wilkes (1981) FLC 91-060 that where a party wishes to challenge an order made in his or her absence, the appropriate course is to apply for a rehearing at first instance, rather than to appeal, nevertheless, the matter can also be dealt with on an appeal.

4. In the present case the appellant did attempt to re-agitate the matter at first instance by filing a further contempt application on 2 February 2005, albeit including some further complaints.  However, Waddy J in paragraph 18 of his reasons accepted the submission made on behalf of the respondent, that because the original application had been dismissed by Flohm J, he had no jurisdiction to determine any matter covered in that first application.  We consider, with respect, that his Honour was misled in this regard.  As the Full Court made clear in Wilkes (supra), the appellant was entitled to apply at first instance for a rehearing of his application which had been dismissed not on its merits but simply because of his non-appearance.  At least to this extent the appeal against Waddy J’s orders should be allowed.

5. The more difficult question is the approach taken by Waddy J based on the submission of the solicitor for the respondent that the applications should have been for contravention not contempt. Waddy J accepted that the applications were incompetent and dismissed them.

6. It is correct that remedies in relation to failure to comply with orders that affect children are collected in Part VII – Division 13A. Although section 70NAA(1) provides ‘This Division deals with the powers that a Court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children’ it is quite clear that this is not an exclusive division having the effect that no other parts of the Act including the provisions in relation to contempt may apply.

7. The provisions in relation to failure to comply with orders that do not affect children are to be found in Part XIIIAA.

8. However the provisions that allow for an application for contempt in relation to all matters, including children’s matters are contained in Part XIIIB headed ‘Contempt of Court’. Section 112AP provides as follows:

   ‘(1) Subject to subsection (1A), this section applies to a contempt of a court that:

   (a) does not constitute a contravention of an order under this Act or

   (b) constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the court’

9. It is clear that it is possible to bring an application for contempt in relation to a contravention of an order in relation to a child if it ‘involves a flagrant challenge to the authority of the Court’. A discussion in relation to the meaning of those words is to be found in Ibbotson and Wincen (1994) FLC 92-496 at 81,162.

10. It is that inquiry as to whether the alleged contravention involved a flagrant challenge to the authority of the court which should have been made by Waddy J, who it seems was misdirected by the respondent’s solicitor into concluding that the only application that could be brought was one for contravention. For that reason this appeal must also be allowed, and consequently so must the appeal against the order made in relation to costs given that it was apparently made on the basis of the lack of success of the appellant’s contempt application.

11. The result then as we see it, is that the appellant may continue to prosecute the two applications for contempt. It is not for us to consider the question of whether his applications falls within the necessary category provided in Section 112AP (1)(b) although we would remark that it is clear from the authorities commencing with Sahari and Sahari (1976) FLC 90-086 at 75,407 that ‘…the use of the contempt power should be seen as an exercise of last resort.’

Appeal from orders of Purdy J made 8 August 2005

1. It is clear that there were various applications before Purdy J on 8 August 2005 because numerous orders were made, some by consent. The order appealed against is order (5) as follows:

   ‘That the application for dismissal of the Child Representative filed 15^th April 2005 be dismissed.’

2. The application filed by the appellant on 15 April 2005 asked for removal of the child representative and that a new one be appointed. In support of that application the appellant filed a number of affidavits. There was apparently no affidavit material provided by the Independent Children’s Lawyer but it was opposed. The reasons of Purdy J were brief and are as follows:

   ‘As will be seen, the first of the applications before me concerned an application by [the appellant]y that Mr Duncombe be replaced as Child Representative. [The appellant] made some submissions which if totally accepted would probably have resulted in the success of his application, but it seemed to me that [the appellant’s] submissions on the matter were based on perceptions rather than what was the reality of the situation. I stress that I had the assistance of Mr Duncombe for many years and find him an effective Children’s Representative and I refuse to discharge him as the Children’s Representative.

3. The appellant provided us with lengthy written submissions in relation to this appeal.

4. The various affidavits in support of the removal of the Independent Child’s Lawyer included the following allegations:

   a)That on 15 April 2004 he saw Mr Duncombe with a large pile of documents ‘The most credible explanation is that Mr Duncombe was offered and accepted these documents from Mr Byrne, the legal representative for the respondent the problem with that, of course is that I was not served with the same documents, and had no opportunity to comment on the probity or otherwise of them.’

   b)It was also alleged that on 15 April the solicitor for the respondent informed the Court that the Child Representative had interviewed the child. It is complained that the appellant was not consulted about such interview and that this ‘makes me uncomfortable to have him continue as the Separate Representative’.

   c)The appellant complains generally that it is his view that he is disadvantaged over the lawyer for the respondent and that in a recent letter to the Chief Justice he had said that there is a club for specialist lawyers and that quoting from his affidavit ‘the whole situation is a little too cosy for the comfort of self represented people who find themselves confronted by excessive familiarity within the system’.

5. There is little utility in going through the appellant’s various affidavits in more detail other than to observe that he generally is concerned that he is not regarded as well by the Independent Children’s Lawyer as he believes is the lawyer for the respondent.

6. The rejection of the application by Purdy J was an entirely discretionary decision and it could not be said that the conclusions expressed in his reasons were not open to his Honour.

7. Although not referred to by the trial Judge, it may be of some assistance to refer to some general principles in relation to the refusal to discharge a Independent Children’s Lawyer.

8. In Lloyd  and Child Representative (2000) FLC 93-045 Holden CJ said at 87-689-690:

   30.“There are a number of very good reasons why, in my opinion, the court should be slow to discharge a child representative on the basis of largely unsubstantiated complaints of one of the parties. Those reasons include:

   (i)The best interests of the children to have to be borne in mind…

   (ii)The Court should treat allegations of lack of impartiality with caution. To do otherwise would leave every separate representative in the perilous position of facing an application that he or she be discharged because of unfounded allegations or perceptions made by one or other of the parties. There is a need on the part of a child representative to retain his or her impartiality, that is, to be fair to all concerned. However, that does not mean that he or she must take or not take steps in the proceedings simply because one or other of the parties does or does not want her or him to take that step.

   It would be an intolerable situation if a party could successfully apply to have a child representative removed simply because that party perceived that the representative was not “on side” or that the tide was not running in his or her favour. In my opinion, it is only cases where actual or alleged, impartiality has been demonstrated, that consideration ought to be given to removing a child representative.

   (iii)     There is also a public policy consideration…”

1. In this case there was no clear evidence that the independent child’s lawyer had in any way acted contrary to the child’s interests rather it was merely the appellant’s opinion that he had lost impartiality.

2. The appeal in relation to Order 5 of the orders of Purdy J of 8 August 2005 must therefore be dismissed.

Costs of these appeals

1. In our opinion there would be no circumstances which would justify in this case a departure from the general rule contained in s 117 of the Family Law Act that each party bear their own costs of proceedings under the Act. However, we draw to the appellant’s attention that given that the appeal against the orders of Waddy J can be said to have succeeded on questions of law, he would be entitled to apply to us (by a letter to the Appeals Registrar) for a certificate under s 9 of the Federal Proceedings (Costs) Act 1981 in relation to the costs incurred by him in obtaining transcript and preparing the appeal book for purposes of the appeal. Section 9 is in the following terms:

   9 (1)Subject to this Act, and in particular without limiting section 6, where:

   (a)a Federal appeal referred to in paragraph (d), (j), (ja) or (k) of the definition of Federal appeal in subsection 3(1) succeeds on a question of law; and

   (b)in accordance with section 117 of the Family Law Act 1975 , each party to the appeal bears his or her own costs;

   the court that heard the appeal may, on the application of the appellant to the appeal, grant to the appellant a costs certificate in respect of the appeal.

   (2)The certificate that may be granted under subsection (1) by a court to an appellant to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date:  19 January 2007