Nootkamp & Brulja
[2023] FedCFamC1A 90
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nootkamp & Brulja [2023] FedCFamC1A 90
Appeal from: Nootkamp & Brulja [2023] FCWAM 12 Appeal number(s): NAA 23 of 2023 File number(s): PTW 376 of 2019 Judgment of: ALDRIDGE J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – PARENTING – Interim parenting orders – Appeal against orders for sole parental responsibility and injunctions – No error identified – Where insufficient doubt attends the orders sought to be challenged – Where no substantial injustice would result if leave is not granted – Application
for leave to appeal dismissed.Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) s 68C
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28
Family Law Regulations 1984 (Cth) reg 19
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Restraining Orders Act 1997 (WA)
Cases cited: Attia v Health Care Complaints Commission [2017] NSWSC 1066
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Fato v Regione Calabria Pty Ltd [2014] VSC 435
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
McKenzie v Picken [2002] WASCA 113
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rigby & Olsen [2021] FedCFamC1A 46
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
SS & AH [2010] FamCAFC 13
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Thompson v Ludwig (1991) 37 IR 437
Number of paragraphs: 111 Date of hearing: 30 May 2023 Place: Perth, delivered in Sydney The Appellant: Litigant in person Counsel for the Respondent: Mr Worth Solicitor for the Respondent: Platinum Legal Counsel for the Independent Children’s Lawyer: Mr Phillips Solicitor for the Independent Children’s Lawyer: S V Phillips & Co ORDERS
NAA 23 of 2023
PTW 376 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR NOOTKAMP
Appellant
AND: MS BRULJA
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
7 June 2023
THE COURT ORDERS THAT:
1.The application for leave to appeal from Orders 2 and 12 made on 13 January 2023 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $5,000 within 90 days.
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 Nootkamp & Brulja 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 interim parenting orders made by a magistrate of the Magistrates Court of Western Australia on 13 January 2023. The parties have four children, who were born in 2006, 2009, 2011 and 2013.
The parties commenced litigation in 2019. Initially, orders were made for the children to live with the mother and spend two hours supervised time with the father every fortnight. Consent orders were made on 21 April 2021 for the three younger children to spend three hours per fortnight with the father, unsupervised, with changeover to occur at a contact centre. The eldest child’s time was subject to his wishes.
The orders made on 13 January 2023 granted sole parental responsibility for the children to the mother. The two younger children were to spend two hours a fortnight with the father at a contact centre. The time the two elder children were to spend with the father was to be by their choosing. A number of injunctions were made against both parties. The father was however, also restrained from approaching or remaining within 100 metres of the mother, or within 25 metres of any property, including vehicles, of the mother or under her control. He was also restrained from monitoring the movements or communications of the mother.
The father has appealed against the order for sole parental responsibility and the injunctions. The appeal is opposed by the mother and the Independent Children’s Lawyer (“the ICL”).
LEAVE TO APPEAL
Although the father sought leave to appeal in his Notice of Appeal, his Summary of Argument did not address the issue.
Parenting orders are child welfare matters within the meaning of s 28(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”). Leave to appeal is not required for interlocutory orders in child welfare matters.
The mother, however, points out that the injunctions restraining the father from approaching her are not parenting orders and leave to appeal against them is required.
Regulation 4.02(2) provides:
4.02(2)For paragraph (1)(a), a child welfare matter is a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b)the person or persons with whom a child is to spend time or communicate;
(c)any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child.
Orders which restrain a person from approaching another, even if made as part of a suite of parenting orders, do not easily fit into any of the defined categories.
The mother contended that the restraining orders were personal protection orders and not parenting orders (as discussed in Hedlund & Hedlund (2021) FLC 94-065 at [114]–[118]). The immediate difficulty is that neither phrase (“parenting orders” or “personal protection orders”) is mentioned in the Regulations, so the dichotomy does not assist for present purposes. The question is whether the injunctions fall within the regulatory definition of a “child welfare matter”.
Further, personal protection orders are the subject of a specific definition in the Family Law Act 1975 (Cth) (“the Family Law Act”), where such orders only have that character if the order is expressly stated to be for the protection of the person (s 68C(2)). That is not the case with the orders in this matter.
However, as I have said, the injunctions do not fall within the definition of a child welfare matter and, even on a broad reading of them in the context of the orders as a whole, have insufficient connection with the orders for parental responsibility and with whom the children are to live or spend time, to be characterised as such orders. In my view, leave to appeal is required.
Whilst the discretion to grant leave is unfettered, generally the Court will look to see whether the decision is attended with sufficient doubt so as to justify leave and that a miscarriage of justice would occur if leave was not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93-692).
The orders were interim pending a final hearing.
As explained below, the father has not demonstrated that the making of the injunctions is attended by sufficient doubt to justify a grant of leave.
The application for leave will be dismissed.
THE APPEAL
Most of the grounds of appeal concern the making of the injunctions. It is convenient, however, to deal first with the grounds challenging the making of the order for parental responsibility.
Parental responsibility
Was the father denied procedural fairness? (Ground 16)
As procedural fairness goes to the integrity of the trial itself it is necessary to deal with this ground first (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117]).
The mother amended her application six days before the hearing by the inclusion of an order for sole parental responsibility. The amended application was served on the father three days before the hearing and after he had filed his evidence.
Thus the father submits he was denied procedural fairness because he had not been able to address the issue of parental responsibility in his evidence or written submissions.
There are a number of difficulties that face acceptance of the father’s submissions.
The father did not raise any complaint about the late amendment of the mother’s application and did not suggest he was not ready to deal with the issue or seek an adjournment so that he could properly do so. It is impossible for him to now complain that the magistrate erred by proceeding to hear the matter on 10 November 2022 when no other option was raised.
The father did complain about the lateness of the amendments to the injunction sought, which occurred at the same time as the amendments as to parental responsibility, but that is all he did.
The question of procedural fairness is, in many ways, a practical one. A late change in the nature of the orders sought might have the consequence that the other party cannot meet them and would suffer a disadvantage if the new material was allowed and no adjournment was granted. Alternatively, that late change might not cause the other party any difficulties who would be happy to proceed with the case. In the absence of any complaint or request for an adjournment, a judicial officer would not assume that a difficulty would arise.
The father is an experienced litigant, by way of his profession. If he faced a real problem it can safely be said that he would have complained.
Alternatively, if there was in fact a want of procedural fairness, it was waived by the father (Attia v Health Care Complaints Commission [2017] NSWSC 1066, Fato v Regione Calabria Pty Ltd [2014] VSC 435, Thompson v Ludwig (1991) 37 IR 437).
In any event, the father’s complaint must be that the magistrate erred in permitting the amendment or by not granting the father an adjournment, even though it was not sought. No appeal lies against the determination of an application for leave to amend the grounds of an application or to refuse the adjournment of a hearing (s 26(2)(a)(iii) and s 26(2)(b)(iii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
For this reason this ground cannot succeed.
Did the magistrate give sufficient reasons for making the order for parental responsibility? (Ground 18)
Her Honour referred to s 61DA of the Family Law Act and the presumptions created by it and said:
80.I do not consider it is appropriate to apply the presumption in this matter. The parties are completely incapable of communicating with each other in relation to the children. They have been engaged in extensive proceedings in this Court for 4 years so far. I consider that there is intractable conflict between the parties such that it would make impractical for the parties to have equal shared parental responsibility.
81.A prime example is in relation to [Y’s] schooling. The Mother had not unreasonably assumed that [Y] would go to the same high school as [W] and [X]. However, rather than discussing an alternative school with the Mother, the Father sent a completed enrolment form for an alternate school to the Mother’s solicitors, advising that the form had been lodged.
82.I had considered whether the Mother ought to be required to consult with the Father prior to making decisions about the children. The difficulty is that to date, there has been no method of communication that has worked. In the circumstances, I do not intend to require the parties to confer.
The father submitted, in his Summary of Argument filed on 31 March 2023 at paragraph 8, that the reasons are:
·Not sufficient;
·Over-simplistic and vague;
·Not actual reasons;
·Not based in findings of fact and
·Do not “cover any valid articulation on how she reached the determination”.
The authorities as to the adequacy of reasons are well known. In Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267, the Full Court of the Family Court of Australia adopted the principles expounded in Sun Alliance Insurance Ltd v Massoud [1989] VR 8, saying:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, the New South Wales Court of Appeal said:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
Reasons will be adequate when they enable the reader to understand why the orders were made. They need not be lengthy to be adequate.
Here it is clear why the order was made. Her Honour considered that the intractable conflict between the parties made it impractical for them to have equal shared parental responsibility because of the obvious communication difficulties and the inability to agree on matters.
The reasons are therefore adequate and indeed, quite clear and concise. Thus, they are not simplistic and vague.
The magistrate summarised the evidence of the parties, without challenge, as follows:
21.The Mother deposed to a history of coercive behaviour on the part of the Father including but not limited to threats to file applications, attendance at or requests to attend at the children’s activities notwithstanding orders restraining him from doing so, unwarranted reports to the Department of Communities, and the sending of an insensitive letter to her partner after the death of [a relative]. The Mother deposed to having received, via her solicitors, 51 emails within a 9-week period from 20 May to 25 July 2022.
…
24.[I]n [...] August 2022, the Father obtained four interim FVRO’s protecting the children from the Mother. The Mother further opined that the Father seemed to have an “obsession with the Court”. The Father had told the Independent Children’s Lawyer that he wanted [W] to give evidence against the Mother at the FVRO hearing
25.The Mother further alleged the Father’s targets on her solicitor, complaints to the Independent Children’s Lawyer, and the mocking of injunctive orders.
…
40.The Father’s views about the Mother and her solicitor were clear. The Father frequently referred to their conduct as frivolous, vexatious, and an abuse of process. The Father also referred to past orders as being unjust. The Father has made reports to the Legal Practice Board in relation to the Mother’s solicitor.
That is sufficient to establish the findings of the conflict, but when regard is had to the evidence itself, the intractable conflict becomes abundantly apparent.
This ground does not succeed.
Did her Honour err by not applying the presumption of equal shared parental responsibility? (Ground 20)
The first submission was that there was no cogent evidence to rebut the presumption. As I have just said, there was abundant evidence, including from the father himself as to the difficulties in the parties’ communication. Although the parties each made different allegations against each other, which were denied, the intractable conflict flows from either version and from the nature of the allegations themselves. Thus, there was no need to make findings as to whose allegations were correct and there was no error in proceeding as her Honour did.
This ground does not succeed.
Did her Honour make a mistake of fact? (Ground 9)
To repeat a paragraph already quoted, the magistrate said:
81.A prime example is in relation to [Y’s] schooling. The Mother had not unreasonably assumed that [Y] would go to the same high school as [W] and [X]. However, rather than discussing an alternative school with the Mother, the Father sent a completed enrolment form for an alternate school to the Mother’s solicitors, advising that the form had been lodged.
The father says this was erroneous because the enrolment letter has not been lodged with the school. That however, was not what her Honour said, the magistrate merely recorded that the father had advised that it had been lodged.
It emerged during the hearing of the appeal that there was no evidence before her Honour as to the enrolment. What occurred was that during the course of her submissions, counsel for the mother said:
[COUNSEL FOR THE MOTHER]: The moment the Independent Children’s Lawyer issued his letter, report, outlining that the children wanted to return to the centre; that they didn’t want dad to attend their activities and their school, the father enrolled [Y], who is due to commence high school and she’s going to – or is enrolled at the same school as the older children, [W], and [X]. So it’s really just following on in the same pattern to the same school, and he has enrolled her at [D high school] and sent the enrolment form to our office and advised that he has lodged the form.
(Transcript 10 November 2022, p. 22 lines 34–44)
The father did not raise any complaint about this comment from the bar table and when asked about it replied in the following terms:
[THE FATHER]: I didn’t – [counsel for the mother] is – I don’t know what she’s talking about. I didn’t enrol her in the high school. To comply with the order that both parties must get written consent, I didn’t know where they were going to enrol. She has never involved me in that long-term decision - - -
(Transcript 10 November 2022, p.34 lines 24–29)
[THE FATHER]: All I was doing was getting the ball rolling. I didn’t enrol. I simply – I got the form, because they weren’t complying to get my written consent to change the school. I was complying with an order to have the respectful discussion with them.
(Transcript 10 November 2022, p.35 lines 6–11)
The father agreed during the course of the appeal that he had prepared the enrolment form but denied he had lodged it. He had, obviously, sent the completed form to the mother’s lawyers. The limit of any mistake was therefore as to whether the father advised the mother’s lawyers that it had been lodged. The evidence does not allow an answer to that question.
Even if the magistrate erred by finding that the father had lodged the form, which I do not think her Honour did, the error is not material. The point of the example was that the father was acting unilaterally without discussing the matter of the school with the mother and the child.
There is no error.
The Injunctions
It is helpful to set out the full text of the injunctions made against the father:
12.On a without admission is to need basis, the [father] and/or his servants and agents be restrained by injunction and an injunction be granted restraining the [father] and/or his servants and agents from:
(a)behaving in is in an intimidatory, offensive or emotionally abusive manner towards the [mother];
(b)so long as the [mother] remains legally represented, communicating or attempting to communicate by whatever means, including by post, SMS or text messages, or any other electronic means directly with the [mother] or her partner, [Mr C];
(c)behaving in an intimidatory, offensive or emotionally abusive manner towards any professionals engaged to support the [mother] in whatsoever capacity be it medical or legal etc;
(d)knowingly approaching or remaining within 100 metres of the [mother];
(e)knowingly approaching or remaining within 25 metres of any property, including vehicles, of, or under the control of, the [mother];
(f)monitoring the movements or communication of the [mother]; or
(g)causing any other person to engage in the conduct referred to in any of the preceding sub-paragraphs 12(a) to (f).
Orders 12(b) and 12(d) were amended on 27 February 2023 as follows:
1.For the purpose of paragraph 12(b) and 12(d) of the Orders of 13 January 2023, and for the avoidance of any doubt, the [father], … , be permitted to:
(a)participate with the [mother], … , in family dispute resolution or family counselling as defined in the Family Law Act 1975;
(b)instruct a process server or bailiff or other person to serve any legal process requiring service on the [mother];
(c)participate in and attend court events in proceedings in which the [father] and the [mother] are parties or witnesses, and comply with any order or direction of a Court; or
(d)engage in any mediation as directed or ordered by a Court, or other mediation as agreed in writing by the parties and as arranged by a mutually agreed third party.
2.The said proceedings otherwise be transferred to the Family Court of Western Australia.
No appeal has been taken against those orders as amended. It follows that the father cannot now pursue submissions that the Orders 12(b) and 12(d) should not have been made because they unreasonably restricted his ability to undertake the activities noted in the order of 27 February 2023. Grounds 1 and 2 must fall away.
In dealing with the remaining matters it is helpful to recall the principles that apply to appeals from discretionary judgments such as the present. In House v The King (1936) 55 CLR 499 the majority said at 504–505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
Did the Magistrate err “by making unreasonable orders at para 12(f) by making orders that prohibit the father from monitoring the mother when she lives in the joint family house and both parties are required to disclose financial documents such as bank accounts showing where the parties do their shopping and thus disclose their movements”? (Ground 3)
The father submitted that the order is unreasonable, too broad and hard to enforce. He added that as he knew where the mother lived and could trace her movements via her bank accounts there was nothing improper to prevent.
I share her Honour’s concern that it is difficult to see in what circumstances it would be seen to be desirable for the father to monitor the mother at her home. The father, during the course of the appeal, did not suggest that it was. He submitted that the evidence did not support the making of the order.
As discussed below there was evidence that the father was following the movements of the mother and the children. Whilst the allegations remain untested, they were of a sufficient nature to justify the interim order. That is especially so when there are allegations made by the mother that the father has engaged and continues to engage in coercive and controlling behaviour. Further, on one view of the evidence the father continues to have an obsessive approach to the various proceedings.
I do not consider the order to be unreasonable or plainly wrong.
Did the magistrate err by making the injunctions when the parties could have proceeded with the Family Violence Restraining Order hearing where the parties could summon witnesses and test the evidence and by not ruling it was an abuse of process for the mother to litigate the interim Family Violence Restraining Order and orders under the Family Law Act at the same time? (Grounds 4 and 19)
The father did not address any submissions directly to Ground 4.
It was not in dispute that at the time of the hearing the mother’s application for a final Family Violence Restraining Order under the Restraining Orders Act 1997 (WA) (“the Restraining Orders Act”) was yet to be determined.
The Restraining Orders Act and the Family Law Act are different statutory regimes. Whilst injunctions under the Family Law Act may be made restraining a person from approaching another or a particular place, such orders are made in the context of parenting orders, where the best interests of the children are paramount or for the welfare of the children which involves a consideration of their best interests. Either way, such orders relate to the interests or welfare of the children which is the touch stone in addressing orders with whom the children are to live and spend time and who is going to make major long term decisions for them. It is easy enough to envisage a situation where the interests or welfare of a child justify a personal protection order against another person, such as the person with whom they live for the benefit of the children.
That differentiates such orders from those made under the Restraining Orders Act. There is not a conflict in pursuing orders under both Acts at the same time.
Further, s 114AB of the Family Law Act provides that s 68B is “not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections”. The relevant parts of the Restraining Orders Act is prescribed for the purpose of this section (reg 19 of the Family Law Regulations 1984 (Cth)).
Finally, the provisions of Div 11 of Pt VII of the Family Law Act make it abundantly clear that restraining orders and injunctions under s 68B can coexist and identify how such orders can be modified or varied to take account of each other.
Thus there is no abuse of process in seeking orders under s 68B of the Family Law Act and under the Restraining Orders Act at the same time.
This ground has no merit.
Did the magistrate err by making injunctions merely because there were feelings of animosity between the parties? (Ground 5)
As the reasons make plain, animosity or mutual dislike was not the basis of the injunctions.
Did the magistrate err by ignoring the legal rights of the father, as joint owner of the house, to deal with that house by organising repairs and listing it for sale? (Ground 6)
It is true that whatever “rights” the father has as a co-owner of the family home, to come and go to it as he pleased were curtailed by the injunctions. That was the very point of them and so obvious that it did not need mentioning by her Honour.
This ground is pointless in any event. An injunction was made on 3 February 2020 restraining the father from attending the children’s home without the written agreement of the mother. It has not been discharged and would continue to apply if the present injunctions restraining him from approaching within 25 metres of the home was set aside.
The futility of the ground points to leave being refused.
Did the magistrate err in making Order 12(c) merely because the father summoned professionals assisting the mother and because he reported them to their professional bodies? (Ground 6)
The father has not identified any reasonable or proper basis for requiring professionals assisting the mother to present her case to attend court for the purpose of giving evidence. In the case of her lawyers, that is all the more so, given the provision dealing with legal professional privilege in the Evidence Act 1995 (Cth).
In the absence of an identified proper purpose, an inference can be drawn that the involvement of these professionals is for a collateral improper purpose.
There is no merit in this ground.
Did the magistrate err by making orders “based on the contended evidence of the mother that stigmatises the father as a person requiring restraint and significantly curtail the father’s ordinary freedoms”? (Ground 7)
This ground is based on an incorrect premise which is that interim parenting orders cannot be based on contested evidence.
It is true, as is explained in Goode and Goode (2006) FLC 93-286, that the nature of interim parenting hearings is significantly curtailed and “where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible” (at 80, 901). Generally speaking, findings cannot be made on the basis of untested evidence that is in dispute.
That does not mean that the evidence is to be ignored. As Ryan J explained in Eaby & Speelman (2015) FLC 93-654 (Thackray & Forrest JJ agreeing), the proper approach to be followed is that set out in SS & AH [2010] FamCAFC 13, adopted in Marvel v Marvel (2010) 43 Fam LR 348 at [122] and [123], namely:
122. …
[88]In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
123.…
[100]…Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
(Emphasis added)
Further, it is simply not correct to characterise all of the evidence relied on by the mother as contested.
The frequency of the father’s emails for example, 51 emails between 20 May 2022 and 25 July 2022 and their context, such as indications of his filing further proceedings, requests to attend the children’s activities despite extant orders restraining him from doing so and requests to the Department of Communities, cannot be denied. Neither can his obtaining interim family violence orders against the mother to protect the children from her (despite court orders for the children to live with her) nor his desire to “monitor” the mother at home.
The father, of course, places an entirely benign characterisation on these matters which will be resolved at the final hearing, but the primary evidence is not contestable.
For these reasons, this ground falls away.
It is only necessary to repeat that injunctions restricting the freedom of movement, necessarily curtail the rights of individuals. There is therefore no objection to such orders that they do so.
The father relied upon McKenzie v Picken [2002] WASCA 113 where Anderson J (Steytler J agreeing) said:
34.It is trite to say that a violence restraining order is not to be made lightly. It stigmatises the respondent as a violent person from whom another person or persons need to be protected by the Court; and the restraints that may be imposed can significantly curtail the respondent’s ordinary freedoms.
This is no occasion to debate the point of whether there should be a general gloss placed upon applications for family violence orders that they should not be made lightly, as opposed to the terms of the relevant statute being applied to the facts, because the present orders were not made under the Restraining Orders Act. Decisions under that Act or similar Acts, are of very little assistance in applications for injunctions under the Family Law Act. That is especially so in parenting cases where the best interests of the children are either the paramount consideration or an extremely important one (depending on the determination of the orders themselves).
If the orders are found to be appropriate in all of the circumstances, the subjective feelings of the father that they have been stigmatised must carry very little weight.
Did the Magistrate err by making orders that were based on the mother’s account of the father’s behaviour which occurred when interim Family Violence Restraining Orders were in place and were not a breach of those orders? (Ground 8)
Once again this ground mistakenly conflates Family Violence Restraining Orders with orders made for the welfare of the children under the Family Law Act.
Did the Magistrate err by failing to consider that the duration of the orders would extend the five years the father had been under interim Family Violence Restraining Orders and that his liberties were curtailed? (Ground 10)
The father submitted that as he had been the subject of interim Family Violence Restraining Orders since April 2018 it was unfair to curtail his liberties again and indefinitely.
Again, this ground is based on the incorrect premise already discussed.
Further, if the evidence at the time of the orders justified them, so be it. There is no artificial time limit.
Finally, the injunctions are interim pending a final hearing. There is no suggestion that they are intended to apply indefinitely. That will be a matter for the final hearing.
Did the magistrate err by not considering that any alleged breaches would be subject to an investigation by a professional investigative body such as WA Police who investigate alleged breaches of Family Violence Restraining Orders? (Ground 11)
Unsurprisingly, this point was not considered by her Honour, most likely because no submissions raising it were made by the father. That makes it difficult for him to establish the asserted error.
The submissions were that the father was denied procedural fairness because the police would investigate alleged breaches of restraining orders but not contravention applications under the Family Law Act.
As they are different systems for different purposes, the role of the police in one and not the other is not surprising. The role of the police in investigating breaches of orders under the Restraining Orders Act does not give the father a right to have orders made under that Act to the exclusion of the orders under the Family Law Act.
Was Order 12(b) unreasonable? (Grounds 12 and 13)
Order 12(b), as originally made, restrained the father from communicating in any way with the mother or her partner whilst the mother remains legally represented. As we have seen, that order was subsequently modified to permit some contact with the mother in specified circumstances.
The father submitted that the order restraining him from contacting the mother’s partner was unreasonable because he may wish to issue a summons to him to give evidence, communicate with him to discuss his evidence and because he had never met the partner, who additionally had unsuccessfully applied for a restraining order against the father.
The order prevents direct communication between the father and the mother’s partner. It does not prevent the service of a summons on the partner by someone other than the father. It is fanciful in the circumstances to think that the partner would wish to discuss his proposed evidence with the father.
As discussed earlier, a failed application for a restraining order does not prevent the making of injunctions under the Family Law Act. There is no requirement either that the protagonists must have met.
Again the father did not direct any submissions along these lines to the magistrate.
Did the magistrate err by failing to recognise that the mother may have been the perpetrator of family violence and misusing her orders sought? (Ground 14)
The father submitted that the mother has been physically violent to him in front of the children and had misused interim Family Violence Restraining Orders to prevent him seeing the children for 511 days which was also family violence.
The father pointed to his evidence in his affidavit filed on 8 September 2022 at paragraph 20, where he asserted that on 18 March 2018 the mother assaulted him by trying to tip him out of his bed, which woke the children. He described the event as a minor assault.
As such, it is difficult to see how it would have any impact on the final orders.
As to both matters, and others, her Honour said:
31.Where the evidence did not relate to the current issues, I have not specifically summarised it for the purpose of these reasons.
32.A large portion of the Father’s affidavit relates to what he deposed to be mistreatment on behalf of the Mother, alleged criminal activity on behalf of the Mother, and alleged dishonesty in past proceedings by the Mother.
33.These are matters that cannot be determined at this interim stage, particularly as neither party has been tested by cross-examination on their affidavit evidence. Where there are matters in dispute between the parties, in these interim proceedings only a limited consideration of these matters can be carried out. For the benefit of the parties, what that means is, I cannot make any findings of fact where the evidence is in dispute. That will be the task of the Trial Judge or Magistrate who hears the evidence which is then properly tested by cross-examination.
The father did not identify any errors in those paragraphs which fall entirely within the principles discussed earlier. Indeed, her Honour may well have fallen into error by making the final determination sought by the father.
Did the magistrate err by failing to consider the hardship to the father by not living in the joint home? (Ground 15)
This ground begs the question of any hardship the mother and the children would experience not living in the jointly owned home.
In any event, as discussed earlier, the question does not arise because the occupancy of the matrimonial home was dealt with by the orders of 3 February 2020 by which the father was restrained from attending at the children’s home without written permission.
Did her Honour fail to give sufficient reasons for Orders 12(b), 12(c), 12(d), 12(e) and 12(g)? (Ground 17)
The magistrate summarised the mother’s evidence on this point as follows:
21.The Mother deposed to a history of coercive behaviour on the part of the Father including but not limited to threats to file applications, attendance at or requests to attend at the children’s activities notwithstanding orders restraining him from doing so, unwarranted reports to the Department of Communities, and the sending of an insensitive letter to her partner after the death of [a relative]. The Mother deposed to having received, via her solicitors, 51 emails within a 9-week period from 20 May to 25 July 2022.
…
23.The Mother’s primary concern about the Father’s unsupervised time with [Y] and [Z] could be summarised that she is of the view that the Father is using the time to question or cross-examine the children rather than genuinely spending time with the children. She expressed concern for the impact that this was having on the children and deposed that the children stated they felt uncomfortable and did not want to spend time with the Father.
24.[I]n [...] August 2022, the Father obtained four interim FVRO’s protecting the children from the Mother. The Mother further opined that the Father seemed to have an “obsession with the Court.” The Father had told the Independent Children’s Lawyer that he wanted [W] to give evidence against the Mother at the FVRO hearing.
…
32.A large portion of the Father’s affidavit relates to what he deposed to be mistreatment on behalf of the Mother, alleged criminal activity on behalf of the Mother, and alleged dishonesty in past proceedings by the Mother.
…
40.The Father’s views about the Mother and her solicitor were clear. The Father frequently referred to their conduct as frivolous, vexatious, and an abuse of process. The Father also referred to past orders as being unjust. The Father has made reports to the Legal Practice Board in relation to the Mother’s solicitor.
This led to the following conclusions:
90. The injunctions sought by the Mother were largely uncontroversial.
92.The Independent Children’s Lawyer did not support the making of an injunction preventing the Father from monitoring the movements or communications of the Mother. He considered that the order as drafted was too broad. I disagree. I am unable to consider a situation whereby it would be appropriate for the Father to engage in that type of conduct.
It was not correct to describe the orders sought as being largely uncontroversial. The father set out his opposition to the proposed injunctions in his written submissions filed on 2 November 2022 and in his oral submissions (Transcript 10 November 2022, p.17). Some of the mother’s evidence as to the father monitoring her movements and those of the children, his attitude towards her, her lawyers and to her partner were set out in her affidavit filed on 22 August 2022 at pages 6–9 and in her affidavit filed on 27 October 2022 at pages 5–6, 20–22 and 35. This is clearly the evidence that her Honour had in mind when creating the above summary. As I have said, most of this was not disputed, although the father characterised it differently to the mother.
This evidence amply supports the making of the orders.
However, neither of the above points are relevant to the ground which challenges the adequacy of the reasons. The father submitted that the reasons were not sufficient because there “wasn’t enough findings of facts of uncontroversial evidence put to the Court to grant those orders” (Father’s Summary of Argument filed on 31 March 2023, paragraph 17). That is not an attack on the sufficiency of reasons but a challenge to the orders on the basis that they were not supported by the evidence. I have explained elsewhere the difficulty with this submission.
It must be recalled that this evidence did not exist in a vacuum. The mother and the ICL gave evidence that the children were upset and anxious over the father turning up unexpectedly, did not want him to do so and would prefer to see him in a structured and controlled situation. Clearly, and most appropriately, this was given significant weight as is evident from the passages at [49], [57], [58], [61], [64], [68] and [69].
Reasons will be adequate when the reasoning of the judge is apparent. That is the case here. It can be seen why the orders were made. Whilst it may have been desirable for the magistrate to have outlined in some more detail the evidence relied upon to found the orders, it must be recalled that those were interim proceedings where the main challenge to the making of the orders was not the insufficiency of evidence, but the alleged abuse of process already discussed. The extent of reasons depends upon the nature of the matter before the court and the issues raised. See Sun Alliance Insurance v Massoud [1989] VR 8 at 18; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443 and DL v The Queen (2018) 266 CLR 1 at [32].
As was recently stated in Rigby & Olsen [2021] FedCFamC1A 46:
38.…It is not required to give reasons regarding every argument, nor to perform a microscopic analysis “if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration” (A v J (1995) FLC 92-619 at 82,230).
This ground does not succeed.
COSTS
The appeal and the application for leave to appeal is dismissed. The father has been wholly unsuccessful. He did not suggest that the order sought by the mother for her costs was unreasonable. The father will pay the mother’s costs fixed in the sim of $5,000 within 90 days, given the father’s current employment issues.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 7 June 2023
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