Oscar & Traynor
[2008] FamCAFC 158
•27 October 2008
FAMILY COURT OF AUSTRALIA
| OSCAR & TRAYNOR | [2008] FamCAFC 158 |
| FAMILY LAW – APPEAL – PARENTING – Where orders were made limiting the time the appellant father could spend with his children to commence and conclude at a contact centre – Orders providing for fixed day and time where father is a shift worker – Where father has a reported history of alcohol abuse FAMILY LAW – APPLICATION IN A CASE – Application by the mother seeking orders that the father’s appeal is vexatious – Application dismissed where appeal unmeritorious but not vexatious FAMILY LAW - COSTS – APPLICATION – Application by the mother for costs – Costs neither legal expenses nor costs of witnesses – Application dismissed FAMILY LAW - COSTS – That the appellant pay the costs of the Independent Children’s Lawyer to be assessed |
| Family Law Act 1975 (Cth), s 117, s 118, s 121 |
| AMS v AIF (1999) 199 CLR 160 |
| APPELLANT: | MR OSCAR |
| RESPONDENT: | MS TRAYNOR |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
| FILE NUMBER: | NCF | 3046 | of | 2002 |
| APPEAL NUMBER: | NA | 22 | of | 2008 |
| DATE DELIVERED: | 27 October 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray & Benjamin JJ |
| HEARING DATE: | 4 August 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 February 2008 |
| LOWER COURT MNC: | [2008] FamCA 95 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Respondent appeared in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Walker-Munro |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Commission of NSW |
Orders
That the appeal be dismissed.
That the appellant pay the costs of the Independent Children’s Lawyer to be assessed.
That the application of the respondent filed 28 July 2008 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Oscar & Traynor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 22 of 2008
File Number: NCF 3046 of 2002
| MR OSCAR |
Appellant
And
| MS TRAYNOR |
Respondent
REASONS FOR JUDGMENT
The Father’s Appeal
The father appeals against orders made by Murphy J on 22 February 2008. The appeal concerns parenting orders in relation to two children, O (born January 2000) and X (born December 2001).
The orders from which the father appeals are as follows:
Parental Responsibility
3. The mother have sole parental responsibility for the long term welfare, development and care of the children, [O], born […] January 2000 and [X], born […] December 2001, save that prior to making any decision with respect to any “major long-term issue” (as defined by the Family Law Act 1974 (as amended)) (“the Act”)), she shall give to the father not less than 28 days written notice of the nature and content of any such decision, to the address notified to the mother by the father in accordance with these orders.
…
Lives With
5. The said children shall live with the mother.
Spends Time With
6. The said children shall spend time and communicate with their father at all such times as might be agreed between the parties in writing, and failing agreement in accordance with the following orders:
6.1 On each alternate Saturday commencing 1 March 2008:
6.1.1 To a date four (4) months therefrom, for a period of four (4) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.2 Thereafter for four (4) months for a period of six (6) hours commencing not earlier than 9.00am and concluding not later than 5.00pm;
6.1.3 Thereafter between 9.00am and 5.00pm;
with each such period of time commencing and concluding at, and supervised by, the Interrelate Family Centre […].
6.2 On Father’s Day for the period consistent with the timetable provided for in Order 6.1 with time with the father to occur in lieu of the Saturday otherwise falling closest to Father’s Day.
6.3 On Christmas Day in each year for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm.
6.4 In respect of each of the children’s birthdays:
6.4.1If such birthday shall occur in a week in which, in accordance with Order 6.1, the children would spend time with their father, then they shall spend time with him in accordance with Order 6.1;
6.4.2If such birthday shall occur in a week in which time with the father does not otherwise occur in accordance with Order 6.1, then for a period of four hours commencing not earlier than 9.00am and concluding not later than 5.00pm on the Saturday following such birthday.
For the purposes of this order a week shall commence on a Sunday.
6.5 The Mother shall do all such things as might be necessary to actively encourage the children to communicate regularly with their father by letter or card.
Other Issues
7. The Mother shall:
7.1Do all such things and sign all such documents so as to authorise and permit the Father to obtain all reasonable information with respect to the children’s scholastic, sporting and extra-curricular activities;
…
9. The Independent Children’s Lawyer shall provide a copy of these Orders and Reasons for Judgment to the Director of the Interrelate Family Centre […] as soon as reasonably practicable after the date of these Orders.
10. Each of the mother and father shall do all such things and sign all such documents as might be necessary to request that the Interrelate Family Centre […] monitor and take notes of their observations of the changeovers provided for in these Orders and, in particular but not limited to, any observable signs that, in the opinion of any responsible person at the said Family Centre, the father is adversely affected by alcohol.
In addition to the appeal we heard an Application in a Case filed on 28 July 2008, where the respondent mother sought leave for her application to be heard by the Full Court. In this application she seeks a declaration that the father is a vexatious and frivolous litigant and that he be ordered to pay for her travel costs and associated expenses, including compensation for the loss of pay which resulted from attending Court for his appeal. The merits of this application will be dealt with following consideration of the father’s appeal.
Background
The circumstances of the parties’ history are not in dispute and there is no need to exhaustively list all the particulars of their marriage. Therefore, we will only briefly recount such facts as necessary to understand the appeal before us.
At trial the father was aged 50 and the mother 47. The parties married in June 1994.
There are two children of the marriage, O and X. Both children were born in Korea and came to Australia pursuant to the Intercountry Adoption Program of Adoption and Permanent Care of the New South Wales Department of Community Services. O arrived in August 2000 and an adoption order was made in favour of the parties June 2001. X arrived in May 2002.
The parties separated July 2002. This complicated the process of X’s adoption somewhat. It is sufficient to note that after some investigation by the Department of Community Services an adoption order was made in the parties’ favour March 2007.
Following separation, interim consent orders regarding the care of the children were made on 25 November 2002.
Final parenting orders were made on 9 September 2004. Those orders of Carmody J were made after a three day hearing during which reference was made to the father’s use of alcohol. Broadly speaking, those orders provided that the children live with their mother and have contact with their father. The father was also restrained from consuming alcohol while the children were in his care and for 12 hours prior, and he was to have four liver function tests per year.
From December 2004 litigation continued. This included three contravention applications made by the father against the mother, and applications by the mother that the father’s contact be supervised. This ultimately resulted in a trial in June 2006 before Bell J, who made final orders on 2 June 2006. These orders provided for the father to have contact with the children at a contact centre for two hours each alternate Saturday, on Christmas Day, Father’s Day and on the father’s and children’s birthdays.
The father appealed and on 31 July 2007 the Full Court heard the appeal. In orders made on 4 September 2007, the Full Court allowed the appeal and remitted the matter for a new trial.
This further hearing was conducted by Murphy J on 17 and 18 December 2007. It is from those orders of 28 February 2008 (reproduced above) that the father appeals.
Grounds of Appeal
During the preparation and hearing of the appeal, both the mother and the father were self-represented. The substantial pressures and difficulties experienced by the parties in preparing their material without the assistance of legal representation needs to be appreciated.
The father’s Grounds of Appeal are somewhat unusual and were in the nature of propositions rather than alleged errors of fact or law. Rather than replicate the exact grounds as expressed by the father, they can be summarised as follows:
(a)That the mother does not inform the father of matters concerning the children and therefore should not have sole responsibility for the two children;
(b)That the mother is using her position as primary carer to influence the children against the father;
(c)That the father should be permitted to communicate with the children by telephone as the mother does not facilitate the written communication as ordered by the trial judge;
(d)The contact centre is not open on Christmas Day making time with the children on that occasion impossible;
(e)As the father is a shift worker with variable timetables and the contact centre is open on Saturdays and Sundays, the order should have provided greater flexibility;
(f)That the staff at the contact centre have no medical training and therefore are not competent to determine if someone, specifically the father, is adversely affected by alcohol.
As best we understand it, the Ground of Appeal which we have summarised in paragraph 14(f) is directed to paragraph 10 of the Orders.
In addition to the Grounds of Appeal which we have endeavoured to summarise above, the husband relied upon an additional ground which read as follows:
“In short I am lodging this appeal on the ground that it does not engough [sic] time with the children and it gives the mother to [sic] power to infulance [sic] the children…”
In the event his appeal succeeds, the father proposes parenting orders which would provide him with more time with the children. The orders sought are summarised below:
(a)That the children spend two overnight stays per week with the father, with the mother to be given 14 days’ notice. Particularly, the father wishes that the orders take his work hours into consideration;
(b)That both parents be responsible for the long term development and care of the children;
(c)That the father be able to contact the children by telephone when required;
(d)That the father have contact with the children during Christmas, Father’s Day, their birthdays, his birthday and for half the school holidays;
(e)If the children are interstate, that the mother provide the father with a contact telephone number; and
(f)If a contact centre continues to be used to facilitate the arrangements for the children, the mother should bear all associated costs.
Reasons for Judgment of trial judge
At the outset of his reasons for judgment, the trial judge acknowledged that this matter ultimately concerns the competition between two central issues: the potential risk to the children from the father’s apparent alcohol abuse weighed against the potential benefits for the children in having a meaningful relationship with their father. His Honour said:
6.First, it is said that the children are at risk in their father’s unsupervised care because of a long-standing problem with alcohol. It is said that the father has no insight into the nature or extent of that problem and its impact on his behaviour and the risks it represents to his care of the children.
7.The second, and competing, central issue is that, after 18 months of supervised contact at a contact centre, the relationship between the father and the children needs to develop and grow and the children need to spend more time with their father and that cannot occur – productively or meaningfully – at a contact centre.
Later in his judgment his Honour identified those issues as being “vital”.
83.Crucially, it also exemplifies an issue vital to my ultimate findings and conclusions. In my view, the evidence taken on a whole, clearly reveals two potential risks central to the children’s best interests. The first is the risk of harm associated with alcohol abuse. The second is harm associated with an inability for their relationship with their father to go and develop.
Murphy J recognised that these issues must be considered within the context of the “overriding obligation on this court to make orders which, consistent with the court’s findings, best promote the best interests of these particular children in these particular parenting circumstances” (paragraph 8).
His Honour then explained the matters he was required to consider by the Family Law Act 1975 (Cth) (“the Act”), specifically those concerned with potential harm to the child, and the benefit of a meaningful relationship with a parent.
The trial judge concluded that:
34.The primary importance of the Primary Consideration – its characteristic as one of “two pillars” – is, it seems to me, as a supervening imperative. To the picture of best interests emerging from factual findings based on the additional considerations (including s.60CC(3)(m)) must be added a consideration of two matters of primary importance to the ultimate finding of best interests. (First, is the need to protect the children from the specified acts and omissions (s.60CC(2)(b)). The second is the consideration (not application) of a presumption that, consistent with the Act’s objects and principles, children benefit from maximising the extent to which both parents have an important, significant and valuable role in their lives.
His Honour then considered the evidence before him regarding the children and the parents. He gave particular consideration to the expert evidence of Dr Waters, Ms Edwards, and Ms Pollen, none of whom were required for cross‑examination. Ms Bamford, a court counsellor, prepared an “updated report” and was cross-examined.
His Honour’s findings regarding the children’s and parents’ attachments and needs are as follows:
136.By reference to the evidence and reasons just discussed, I make the following findings:
· Neither child is of sufficient age, maturity or level of understanding to express “views” to which significant weight should attach about the parenting arrangements that are in their best interests or the relationship that exists, or should exist, between them and each of their parents;
· The children’s needs, attachments and the nature of their respective relationships with each of their parents are, though, of primary importance and should be gleaned primarily by reference to the expert evidence before the court;
· The mother has carried out the vast majority of parenting tasks and exercised the vast majority of parenting decisions in respect of the children for the bulk of their lives;
· [O] enjoys a significant attachment to both of his parents but his mother is his primary attachment figure;
· [X] is significantly attached to his mother and has, to use Ms Bamford’s words, a “very ambivalent attachment to his father”;
· [O] has expressed a desire to spend more time with his father than he does at present and an opinion that time at the contact centre is boring. He is a bright, articulate child and I agree with Ms Bamford that regard should be had to those wishes;
· The father is sincere in seeking to maximize his relationship with the boys – that is, he is not motivated solely or predominantly by a desire to harass or inconvenience the mother. Nevertheless, the father can, particularly when affected by alcohol, appear threatening and express himself in a threatening manner;
· The relationship between the children and their father is likely to suffer detriment if time spent with him continues to be supervised at a contact centre. That is particularly true of [X] whose relationship with his father is currently “ambivalent” or “somewhat tenuous”;
· There is a basis for concern that the father may have a limited ability to manage and meet the children’s needs for stimulation and that is particularly true of [O] who may be gifted intellectually and in any event appears to have a high need for stimulation and engagement;
· [O] is also strong-willed, energetic and apparently more exuberant than his brother and has a need for supervision accordingly;
· The father is an emotionally immature person who has displayed limited insight into the effect of his behaviours (particularly his drinking) on the children and with a limited capacity to prioritise his children’s needs ahead of his own;
· The mother is dismissive of the children’s relationship with their father and dismissive of the notion that he can, or should, play a meaningful role in their lives. The use of the father’s name (as distinct from the appellation “Dad” or similar) is an example of that attitude;
· The parties currently have a dysfunctional co-parenting relationship marked by no ability to communicate in any meaningful way about the children. There is no reasonable prospect that will improve in the future;
· Both parties are likely to have made their negative views of the other party known to the children – either explicitly or implicitly.
The trial judge then turned to a key issue being the father’s alcohol use and the impact on the children. After considering the evidence before him described at length in the judgment, particularly that of the parties, Dr Waters, Dr W and Ms K, the father’s former partner, his Honour concluded:
182.In light of the evidence and reasons just discussed, I find in respect of the father’s use of alcohol;
· The father is likely to have been a very heavy user of alcohol for a very long period, including the vast bulk of the post-separation period;
· His use of alcohol impacted adversely on a post-separation relationship (with Ms K) and that relationship was marked by false under-reporting of his use of alcohol, his hiding alcohol and the end of that relationship came about essentially as a result of each;
· The father’s use of alcohol has in the past been beyond his control. He has required inpatient treatment for alcoholism;
· His current, and apparent past, insight into the problem that alcohol created for him in the past is, as reported to witnesses in these proceedings, extremely limited and out of touch with the reality of his situation;
· Despite concerns about his use of alcohol and its potential impact on parenting orders being made clear to the father, in orders made some years ago, and in a trial conducted last year, the father has failed to provide any independent evidence as to any steps he has taken to convince the mother and this court either that he does not have a problem with alcohol or that any earlier-perceived problem is under control or being contained;
· Specifically, the father has failed to undergo and produce results of liver function tests as ordered. However, in respect of liver function tests undertaken by his GP, Dr W, “most have been abnormal”;
· The father has only limited control over his drinking and, generally, only when under some form of “coercion” or when confronted with hard data;
· Occasional attempts at sobriety have failed;
· It is unclear what, if any, treatment the husband is seeking from his psychiatrist Dr [P], but the father appears to disavow the need for any such treatment to be directed to any drinking problem;
· Dr Waters’ view that the father is an episodic binge drinker is likely to remain true;
· It is highly likely that the father has had a significant drinking problem which was beyond his effective control for a significant part of the approximately five years since the parties separated.
183.In general terms, the evidence of each of Dr Waters and Dr W which I have accepted (the former with the caveat addressed earlier) paint a picture of serious past alcohol abuse including in-patient treatment in respect of same; a pessimistic picture about change and a picture of extremely limited insight into, and acceptance of, the extent of alcohol abuse. The nature of that abuse is chronic and recurrent binging.
His Honour then considered the expert evidence regarding the amount of time the children should have with either parent. His conclusions about time consistent with their best interests were:
199.For the reasons just discussed, I make the following findings with respect to the children’s best interests:
· If tolerably safe from harm or neglect, the children are likely to benefit from spending more time with their father than what they do at present;
· If tolerably safe from harm or neglect, the children are likely to benefit from spending time with their father away from a contact centre;
· If tolerably safe from harm or neglect, [X], in particular, needs his relationship with his father to grow and develop;
· In particular, [X]’s relationship with his father is, at the moment, “somewhat tenuous”.
His Honour considered the potential risk to the children stemming from the father’s use of alcohol. He acknowledged that the mother had good reason to be “concerned about the father’s unsupervised care of the children” (at paragraph 201). In particular, Murphy J referred to the father’s apparent lack of insight into the nature and extent of his drinking (at paragraph 213).
The father currently lives with a Ms B. The judge considered whether that fact might alleviate the risk in any way:
227.Ms [B] was not a deponent and did not give evidence. The father provided an explanation for that. Ms [B] is, I gather, profoundly deaf. According to the father’s oral evidence she also suffers from bi-polar disorder. This results in her suffering significant impairment. To use the father’s words: “as for basic life skills, she hasn’t got them”.
228.It is not necessary, given the father’s ultimate proposals, to examine the role which the father mooted for Ms [B] in the care of the boys in the event of his initial equal time shared care proposal. In the current context, what is significant in my view is the evidence of Ms [P] as to the change in account given by Ms [B] as to the quantity and timing of the father’s drinking and the manner in which that account to Ms [P] changed.
229.I take no comfort in the potential presence of Ms [B] at, or her participation in, time between the father and the children as a means of alleviating the risk perceived by me.
In view of the significance in the appeal, the findings related to the father’s alcohol consumption and the need for restrictions in relation to the time the father spends with the children are reproduced below:
230.I am not persuaded that the factors outlined by the father and enumerated above lead to a conclusion that his drinking does not represent a risk to the children were he to have significant unsupervised time with them. On the whole of the evidence before me I find that, in those circumstances, there would be an unacceptable risk to the children emanating from the father’s likely abuse of alcohol.
231.Whilst unable to specify the exact quantity of alcohol currently consumed, or the frequency with which it is currently consumed, I consider the risk emanates from the totality of the evidence before me. In particular, I think there is a very high likelihood that the binge drinking problem identified by Dr Waters continues to afflict the father and I think there is a high likelihood that the father’s use of alcohol is barely controlled by him.
232.I consider, though, that the evidence indicates a measure of control by the father over his drinking or, more precisely, a measure of control over a level of drinking at which his capacity to care for the children and exercise the responsibilities of parenthood becomes unacceptably impaired.
233.I think that measure of control is most likely understood or explained by reference to a part of Dr [W]’s evidence. The doctor gave evidence that it was only when the father was confronted with data or was under some form of “coercion” that he effected change. I consider that the father’s employment at the hospital and time with the children under the scrutiny of the contact centre operate as a form of, as it were, coercion that allows the father to maintain a measure of control over the extent of his drinking.
234.Put in simple terms, in my judgment, the father is, as it were, able to “hold it together” for those periods when he knows significant scrutiny is being applied to his behaviour in general and his drinking in particular.
235.Conversely, I consider that the likely level of the father’s drinking presents a risk to the children in circumstances where the length of time and circumstances of time spent with them is such that I can be less confident that a reasonable degree of scrutiny is present.
236.It is for that reason that I am not prepared to countenance, for example, overnight time or time which extends for a period longer than about the working day.
237.Taking all of those matters into account, in my judgment, the children’s best interests require time spent with their father away from the contact centre but in circumstances where the time periods are relatively short and where a monitoring of the situation – independent of the father or his actions or inactions – exists. The latter can occur, in my view, if all changeovers occur at the contact centre where contact has taken place.
238.Orders along those lines will represent a change for the children. I consider that I should graduate that process so that, initially, periods of time are relatively short and build to longer periods to allow both children to adjust to that change.
239.I consider that time should, over a period of about 12 months, build to an entire day.
240.I also propose that a copy of my reasons and orders be made available to the contact centre and I intend to order that each of the parties do all things necessary to request the contact centre to take notes of the “cluster of behaviours” referred to by Mr [J].
241.I am acutely aware that my findings as to an appropriate time regime have neither a review by this court built in to them nor contemplate further time (including, for example, overnight or holiday time). That omission is intentional. I am not persuaded that any benefit, or risk, to the children outweighs the risk to their care posed by such an order.
242.I am bound to consider whether it is preferable to make a time order which would be least likely to lead to the institution of further proceedings in relation to the child.
243.These parents have been litigating for many years. An end to litigation (and, more generally, parental conflict) is, without doubt in the best interests of these children.
244.If I make final Orders which do not provide for time with the children more extensive than that proposed, I acknowledge that there is the possibility of future proceedings. However, I cannot persuade myself that making interim orders which contemplate, as a certainty, further judicial process is in the children’s best interests or is otherwise warranted. Nor can I persuade myself that final orders which provide for time with the father to extend beyond that which I contemplate can be made without an unacceptable risk of harm to the children.
245.If I make final Orders along the lines indicated, each party will confront the need to establish a change of circumstances before the Orders are changed. Again, that is an intended effect of the Orders I contemplate. I particularly have in mind (but not exclusively) any change that might in the future be alleged by the father as to the nature or extent of the risk, found by me, that is posed by the father’s alcohol use.
246.In reaching these conclusions with respect to time, I have taken into account the primary importance of the children having the benefit of a meaningful relationship with their father but have determined that the nature, extent and manner of time I will order provides to the children the maximum meaningful involvement with the children by him consistent with my findings as to risk and the children’s best interests.
The trial judge ordered that the mother have sole parental responsibility for the children’s long-term welfare. Based on the evidence before him, his Honour decided that the presumption of equal shared parental responsibility was rebutted. Having considered the relevant factors, his Honour concluded that:
264.… [T]he best interests of [O] and [X] require the rebuttal of the presumption of equal shared parental responsibility. Equally clearly, emerging from the preceding reasons, I consider that I should make orders which take account of the fact that the mother has, in fact, made the significant parenting decisions for these children historically and my findings that the father’s capacity to do so has been impaired in the past and is likely to be impaired at times now and in the future. Yet, those same orders should, in my view also take into account, if possible, my concerns about the disdain in which the mother holds the father and her negative view about his meaningful involvement in their future lives.
265.I propose to attempt to balance those considerations by ordering that the mother have sole parental responsibility but she shall give the father written notice of any decision about any major long term issues (as defined in the Act) in respect of the children. Again, a concern about future litigation looms large, but I nevertheless conclude that those orders are appropriate.
Applicable Law
It is appropriate at this stage to identify the principles governing an appeal such as this from a discretionary judgment. The law in this respect is not in doubt.
In Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J described the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:
there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
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 Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing Murphy J’s discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J (as he then was) in De Winter v De Winter (1979) FLC 90-605 at 78,091, we are obliged to allow the appeal, set the orders aside and, if possible, substitute our own decision after considering the matter afresh. We also remind ourselves of what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow & Kirby JJ as part of a discussion in relation to the powers and functions of courts of appeal said:
22.The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23.The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Submissions of the Father
The appellant was self represented and made extensive submissions during the hearing. However, these submissions were, at times, confusing. We are conscious of the difficulties associated with self representation and mindful that the father’s argument may be obfuscated by his own advocacy. This issue was recognised by the trial judge (at paragraphs 90 and 91). Consequently, we will endeavour to reproduce the essence of the father’s arguments.
Generally, the submissions concern three broad issues: the nature of the contact orders; the evidence regarding his apparent alcoholism; and more general complaints about the hearing before the trial judge. We will consider each of these issues in turn.
Firstly, the father argued that the contact orders were impractical and onerous for him because of the nature of his shift work. In his written submissions, he argued that the children clearly want to spend more time with their father. The father submitted that although he knew his hours one month in advance, it was very difficult for him to arrange to have contact with his children. The strict nature of the orders made them particularly onerous as they provided little flexibility.
In particular, the father was concerned that the particular centre being used for supervised contact and the nature of the orders means that he can only see the children on a Saturday, which is difficult to reconcile with his employment. The father was also particularly concerned about whether the contact centre would be open on Christmas Day however, he was uncertain if the trial judge had evidence regarding the centre’s opening hours throughout the year.
The father also submitted that supervised contact was an ineffective means of protecting the children from his supposed alcohol abuse, and was therefore inconvenient. He argued that if he in fact had had an alcohol problem as alleged and accepted by the trial judge, the children would have been exposed to the same danger in the previous contact orders which allowed him four, six and eight hours contact respectively. Mr Oscar submitted:
Now if there was an alcohol problem I can do just as much damage in four hours, six hours and eight hours as what I can do overnight.
Mr Oscar argued that he should have been allowed overnight contact with the children.
The father further argued that the contact centre should not have been given a copy of his Honour’s Reasons for Judgment, as this has led to “preconceived judgments on contact changeover”. However, as was explained to the father during the appeal, there is little this Court can now do to ameliorate this issue. The contact centre has had a copy of Murphy J’s judgment for some time. It is difficult to see how an order of this Court to remove the judgment from the contact centre would have any beneficial effect.
With respect to the second issue, being his alcohol consumption, the father made various submissions about the weight that his Honour placed on the evidence at trial. Firstly, he submitted that the mother’s Summary of Argument clearly stated that his liver function test of 24 February 2005 was relatively normal, and this was an accurate description of the result of the test. He submitted that this was evidence refuting his apparent alcoholism. In his written submissions, the father argued that the test was only “relatively normal” because it was done while he was on holidays in Innisfail. However, as was explained to the father during the appeal, this document does not constitute evidence. In fact, Murphy J did not have the results of this liver function test before him during the trial.
The father submitted that the testimony of Ms K, his former partner, indicated she was an unreliable witness because of the inaccuracies within her statements. For this reason, the father argued that his Honour should not have placed significant weight upon Ms K’s evidence and should not have found her to be a reliable witness. This point was of particular importance to the father. In the course of his submissions, the father also intimated that Ms K may have been angry about the end of their relationship, and this influenced her testimony in a way which was detrimental to him.
He then turned to the financial evidence that was before the trial judge. The father submitted that there was no evidence which suggested he had an alcohol problem. He said (T/s p.8):
MR OSCAR:Now on the financial statement it also states things like it’s got my group certificate, right, I earned some $35,000. I paid $28,000 for a deposit for a house so that leaves me $7,000 to live on. Where is all the alcohol coming from?
MAY J: And are these things you mentioned to his Honour in your submissions?
MR OSCAR:Yes in the submissions it has also got the mortgage repayments, what I actually pay in mortgage repayments. It’s got my tax return, it’s got my rosters, it’s got what damage was done to the rental property, the costs that are still ongoing now.
MAY J: Yes. And how is it that you say that his Honour didn’t understand what you were telling him or didn’t properly take into account?
...
MR OSCAR:He didn’t acknowledge the fact. The same as the counsel for the mother he said – I said “well how do you think I am doing it?”. He goes “I don’t know.”
The father also submitted that the trial judge failed to have due regard to the evidence from his employer. The father argued that as he works in the drug and alcohol unit of a methadone clinic, his employer and work colleagues would be acutely aware of the signs of alcoholism and therefore would have noticed if the father had an alcohol problem. The father submitted that no evidence of any alcohol problem had ever been recorded in his personnel file.
This submission was apparently directed to his Honour’s conclusion at paragraph 182 (AB p.43):
·Despite concerns about his use of alcohol and its potential impact on parenting orders being made clear to the father, in orders made some years ago, and in a trial conducted last year, the father has failed to provide any independent evidence as to any steps he has taken to convince the mother and this court either that he does not have a problem with alcohol or that any earlier-perceived problem is under control or being contained;
Although the father clearly disagreed with the conclusions his Honour reached, he did not make any submissions which demonstrated that his Honour was “plainly wrong” in arriving at his conclusions.
Finally, with respect to general grievances about the trial itself, the father complained that two of the mother’s witnesses (Mr G and Ms M) lied whilst under oath when giving their testimony. However, the father was prepared to acknowledge that Murphy J did not place any significant weight on this evidence in reaching his ultimate conclusions, as explained in paragraph 133 of his judgment:
Affidavits were received from a Ms [M] and Mr [G] in the mother’s case. Again, their evidence does not weigh significantly on my mind in reaching an ultimate determination of the issues in this case.
Submissions of the Mother
The mother was self represented and made brief oral submissions. At the outset the mother made reference to the length of time that the parties had been litigating and where his Honour had made reference to that in his reasons for judgment:
117.… I also take account of the fact that this matter has a long history with multiple applications. The mother is, in my view entitled to feel significantly exasperated at being involved in a parenting trial nearly six years after a relationship has ceased.
In relation to the appeal it was submitted that the reasons for judgment of the trial judge were well thought out and that all the matters that were raised by the father at trial had been meticulously considered by the trial judge. It was further submitted that in his reasons for judgment the trial judge continually considered the best interests and the safety of the children and that the orders made by his Honour take into account all the matters that the father raised.
Submissions of the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer submitted that the trial judge had set out the findings relevant to the exercise of parental responsibility in the judgment and discussed the issues of parental responsibility. Additionally, his Honour had specifically identified his reasoning for finding that it was in the best interests of the children to rebut the presumption of shared parental responsibility and make an order that the mother have sole parental responsibility for the children. It was submitted that the appeal should not be allowed.
In relation to the specific terms of the order the Independent Children’s Lawyer explained that the decision was based on the information provided by the parties, including the father. There was no real evidence before his Honour about the availability of the contact centre. The Independent Children’s Lawyer specifically referred to the exchange between the trial judge and the father about the terms of the order.
With respect to the father’s complaint about the inflexibility of the contact orders, the Independent Children’s Lawyer was not opposed to the father having contact with the children on a Sunday rather than a Saturday.
However, the Independent Children’s Lawyer was firmly opposed to the father having any overnight contact with the children because of the risks identified by the trial Judge in relation to alcohol.
Regarding the issue of contact on Christmas Day, the Independent Children’s Lawyer stated there would be no objection to there being contact on that day, and it was her position that this would be in the children’s best interests. The difficulty surrounding this issue was said to relate to the inability of the parties to reach an agreement about how such contact can be facilitated in circumstances where the contact centre is not open on Christmas Day.
Finally, regarding the father’s submissions about the evidence of Ms K, the Independent Children’s Lawyer argued that although Murphy J did find her to be a witness of truth, his Honour clearly considered at length other evidence that was put before him. Ms K’s testimony formed only part of his reasons in relation to the alcohol issue.
Conclusions
There is nothing in any of the father’s submissions which persuades us that any relevant finding made by his Honour was erroneous or that he erred in any way in the exercise of the wide discretion available to him. In these circumstances, we consider it is necessary only to make a few comments in relation to four specific matters raised by the father.
Ground directed to Order 9
The terms of paragraph 9 of his Honour’s orders have been replicated earlier in this judgment and provide simply for a copy of the orders and his Honour’s reasons for judgment to be provided to the Director of the contact centre. His Honour explained why he proposed to make that order at paragraph 240 of his judgment:
240.I also propose that a copy of my reasons and orders be made available to the contact centre and I intend to order that each of the parties do all things necessary to request the contact centre to take notes of the “cluster of behaviours” referred to by Mr [J].
Section 121 of the Act places restrictions on the publication of any account of proceedings or of any part of any proceedings “to the public or to a section of the public”. There are, however, a number of exceptions to this provision. As was explained by the Full Court in Re W: Publication application (1997) FLC 92‑756 at 84,262, copies of judgments of the Court “insofar as they relate to matters with which child welfare authorities are legitimately concerned, may be forwarded to such authorities without the commission of a breach of s 121, because for such a purpose, the authorities would not constitute “the public or a section of the public”. The Full Court later went on to say that the Independent Children’s Lawyer would be entitled to make a copy of a judgment available to “the relevant departments provided that it considers that it is appropriate to do so having regard to a bona fide exercise by them of their concerns and role in this litigation”.
We would not regard the principle stated in Re W as being restricted to “child welfare authorities”. Even had his Honour not directed that a copy of his reasons and orders be provided to the contact centre, it is quite arguably the case that the Independent Children’s Lawyer could have made the documentation available to the centre without leave of the Court. In any event, in our view it was an entirely proper exercise of his Honour’s discretion to direct the provision of the materials to the contact centre in order that its staff could understand the role they were required to perform in facilitating contact between the father and the children.
Ground directed to Order 10
We have earlier in these reasons replicated paragraph 10 of his Honour’s orders which anticipates that the staff at the contact centre will monitor and take notes of what occurs at the changeovers at the centre and in particular to note whether or not the father is adversely affected by alcohol.
The father challenges this order on the basis that the staff of the contact centre “are not medical practitioner [sic] to see if anyone is adversely affected by alcohol”. In our view his Honour was entitled on the evidence to have concerns about whether or not the father would be under the influence of alcohol at times when he was seeing the children. In paragraph 182 and following his Honour made findings about the father’s use of alcohol. It is clear from paragraph 245 that his Honour contemplated the need for independent evidence in the future in relation to the father’s behaviour.
In our view it was an appropriate exercise of his Honour’s discretion to direct the parties to endeavour to enlist the assistance of the staff at the contact centre in monitoring whether or not the father was affected by alcohol. We are not in any way persuaded that an absence of medical qualifications would prevent staff from determining whether or not the father appeared to be under the influence of alcohol.
Christmas Day
His Honour’s orders contemplated that the children would be able to see their father on Christmas Day each year for a period of four hours. The father’s Grounds of Appeal suggest that he considers his Honour erred in making his orders because the contact centre is closed on Christmas Day.
Careful reference to the terms of his Honour’s orders will indicate, however, that there is no requirement in the orders for the Christmas Day contact to commence and conclude at the contact centre. That requirement is contained only in paragraph 6.1 of his Honour’s orders. Paragraph 6.3 of his Honour’s orders (dealing with Christmas Day) is silent in relation to the place at which contact should commence and conclude.
As we understand the submissions which were made to us, the parties have been unable to reach an agreement in relation to the way in which the Christmas Day contact will be facilitated. It is perhaps unfortunate that his Honour’s reasons and his orders do not address the way in which contact on Christmas Day is to take place. This is not, however, a matter in relation to which appellate intervention is required. If the parties cannot, with the assistance of the Independent Children’s Lawyer, reach an agreement about this matter, we see no alternative than for them to make an application at first instance (preferably to Murphy J) for an order dealing with the arrangements for Christmas Day.
Specific Day Nominated in the Order
We accept that the apparent inflexibility of the orders, which confine the regular contact to Saturdays, may create difficulties for the father who is a shift worker. Nevertheless, in the absence of evidence provided by the parties of the availability of the contact centre and in light of the difficulties the parties have in communicating, we are not satisfied that his Honour erred in fixing the day and time for the contact visits. The existence of the order does not prevent the parties from reaching an alternative arrangement with the contact centre to ensure that the father continues to have time with the children. In the event that the times provided for in the orders continue to prove to be problematic for the father, we do not consider that he would be barred from making an application to the Court for orders allowing the contact to be taken at a different time.
We otherwise see no merit in the appeal and we would dismiss it.
The Mother’s Application in a Case
As we recorded in paragraph 3 of these reasons, we also have before us the mother’s Application in a Case filed on 28 July 2008 in which she sought leave of the Full Court to hear her application for costs and her application that the father be declared a vexatious litigant.
We observe that there is no need for the mother to seek leave of the Court to make an application for costs of the appeal and we are also not convinced that leave is necessary in relation to the other part of her application.
Costs
The mother sought an order for costs against the father in the event the appeal was dismissed. She did not have legal representation and thus did not incur any legal fees. Our attention is therefore directed only to the expenses she sought to recover, which were particularised as follows:
One night’s accommodation $130.00
Travel expenses (404km @ 27.4c per km) $110.70
Meals $ 81.80
Loss of one day’s income $272.00
Child care $146.00
Section 117 of the Act relevantly provides:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to … the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
There is no definition of “costs” in the Act. In Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at p 219, Hayne J said:
On its face, then, the reference in s 117 to “costs” is a reference to “costs” as that word is ordinarily understood in the law: the amount which the person to whom the order is directed must pay to some party to the litigation as partial indemnity for the professional legal fees and expenses incurred by that party in the course of the litigation.
Section 123(1)(g) of the Act provides that the Judges may make Rules of Court not inconsistent with the Act:
prescribing matters relating to the costs of proceedings (including solicitor and client costs and party and party costs) and the assessment or taxation of those costs.
Rule 19.01(2) of the Family Law Rules 2004 (“the Rules”) provides:
(2)A party may only recover costs from another party in accordance with these Rules or an order.
The term “costs” is defined in the Dictionary to the Rules as meaning “… an amount paid or to be paid for work done by a lawyer, and includes expenses”.
The term “expense” is defined in the Dictionary as meaning “… an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party”.
Rule 19.34(3)(c) provides that, in assessing costs as between party and party, a Registrar must not allow expenses that are “unusual”.
In determining what costs and expenses can be recovered by a self represented litigant, it is instructive to consider the decision of the High Court in Cachia v Hanes (1994) 179 CLR 403 where the majority said at pp 410-411 (references deleted):
To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner’s employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules.
This is hardly surprising. It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester, the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expences of his travell and losse of time”.
The majority went on to observe (at 414-415) that costs orders:
… are intended to reimburse a litigant for costs actually incurred; they are not intended to compensate for some other disadvantage or inconvenience suffered by the litigant.
If costs were to be awarded otherwise than by way of indemnity, there would be no logical reason for denying compensation to a litigant who was represented. That would in some cases dramatically increase the costs awarded to a successful litigant. …
Whilst the restricted basis upon which party and party costs are awarded may be debated as a matter of policy, it is to be borne in mind that party and party costs have never been regarded as a total indemnity to a successful litigant for costs incurred, let alone total recompense for work done and time lost. Putting to one side the question posed by the relatively rare exception of a solicitor acting in person, there is no inequality involved: all litigants are treated in the same manner. And if only litigants in person were recompensed for lost time and trouble, there would be real inequality between litigants in person and litigants who were represented, many of whom would have suffered considerable loss of time and trouble in addition to incurring professional costs.
Having noted the provisions of legislation in England which does permit recovery of limited compensation by self represented litigants, the majority in Cachia v Hanes went on to say (at 416-417):
We should add that the English legislation and rule represent a straightforward approach to the problem, in contrast to the approach adopted in some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement. Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible. Of course, a litigant who qualifies as a witness is entitled to the ordinary witness’s fees.
Turning to the matter before them, the majority concluded (at 417):
The disbursements claimed by the appellant and disallowed upon taxation were, on the one hand, travelling expenses in addition to a witness’s fee for preparation and, on the other hand, travelling expenses to hear judgment. Either the appellant was entitled to the witness’s fee or he was not; he was not entitled to travelling expenses in addition to or in lieu of the fee. And since the appellant was not entitled to any recompense for his appearance in court to hear judgment, it was, we think, within the discretion of the Taxing Master to disallow any travelling expenses as an out-of-pocket expense incurred for that purpose. They were not an out-of-pocket expense which would have been recoverable by him or his solicitor in this case had he been legally represented.
There has been considerable case law since Cachia v Hanes, much of which is unreported, dealing with claims for recovery of “expenses” as “costs”. Those expenses which have been found to be properly recoverable include:
a)court fees (see, for example, the discussion of the Full Court in B and P [2000] FamCA 392 at [50]; and also the Family Law Regulations 1984, reg 11(6)(b));
b)transcript costs, on the basis that they cannot also be claimed as costs in connection with the trial (see, for example, the discussion of the Full Court in W (deceased) and W and Ors [2004] FamCA 319 at [41]);
c)expenses for serving documents (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]);
d)freedom of information fees (see, for example, Pittwater Council v Bolitho [2007] NSWLEC 355 at [159]);
e)fees for searching registers, such as an ASIC search fee (see, for example, Re Sullivan and Department of Industry, Science and Technology (1998) 51 ALD 767 at [45]);
f)appeal book binding (see, for example, Winter v Fleeton [2002] WASCA 73 at [23]);
g)disbursements incurred by a litigation guardian (see, for example, Step v Northern Territory (2007) 20 NTLR 141); and
h)incidental expenses in relation to photocopying, postage and telephone and facsimile transmissions (see, for example, Shephard v Blueberry Farms of Australia (Corindi) Ltd (2001) 162 FLR 339 at [66]; Cary v Owners of Strata Plan No. 7241 [2002] FMCA 18).
There are, of course, also many cases in which a litigant has been awarded costs relating to the legal advice obtained in preparation for a hearing, although they did not have legal representation at the hearing itself.
Expenses which have been held not to be recoverable include:
a)travelling costs (see, for example, the discussion of the Full Court in W (deceased) and W and Ors (supra at [49]); and also Farquar and Farquar (No 2) [2008] FamCA 682; Cachia v Hanes (supra) at p 417);
b)parking costs (see, for example, H & H [2006] FamCA 257 at [9]); and
c)meals (see, for example, Maronis Holdings Ltd v Nippon Credit Australia Ltd [2002] NSWSC 838 at [14]).
When considering the case law, it is important to keep in mind that each jurisdiction has different legislative provisions and rules dealing with costs. As Toohey and Gaudron JJ said in Cachia v Hanes (supra) at p 419:
In truth any relevant statute or subordinate legislation must be the starting point for a consideration of the appellant’s entitlement to costs. That is not to say that the interpretation of any statutory provision or rule of court should be divorced from the historical context in which it was introduced or from the understanding of the time. But the ultimate question is one of interpretation.
The starting point must therefore be the proper interpretation of the words “costs” and “expenses” as they appear in the Rules. It will be recalled that:
(a)“costs” has been defined as “… an amount paid or to be paid for work done by a lawyer, and includes expenses”; and
(b)“expense” has been defined as “… an amount paid to a third party, other than a lawyer, for work done in a case or services provided for a party” [our emphasis added].
It is clear to us that none of the expenses claimed by the mother can be properly claimed as “expenses” since the amounts claimed were not paid to a third party for work done in the case or for services provided to the mother in her capacity as a party. The amounts she seeks to recover, although no doubt related to the proceedings, are of a purely personal nature.
Nor can the amounts in question be properly regarded as “costs”, in light of the decision in Cachia v Hanes. Although the High Court in that case was dealing with the Rules of the Supreme Court of New South Wales, the principles enunciated there have been repeatedly applied in this Court. We see no reason to depart from them.
The application for costs will therefore be dismissed.
Vexatious Litigant
Section 118 of the Act together with r 11.04 of the Family Law Rules 2004 grants the court power to dismiss an application of a party and restrict further applications being filed, unless with the court’s permission.
Although the court has the power to make such an order, it is a power that the authorities indicate must be used sparingly. As Kirby J said in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 at 31-32:
First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.
Secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court’s jurisdiction.
The requirements for the exercise of the power contained in s 118 of the Act were recognised in DJC v SJS and Another (2005) 34 Fam LR 329 at 338:
It can be seen that, as a necessary condition precedent to making any order under s 118 or r 11.04 restraining a party from filing or continuing an application, it is necessary for the court first to determine that there are proceedings before it which are frivolous or vexatious, and to dismiss those proceedings before then making the order restraining the commencement of further proceedings.
In the matter of Kettle & Green (Unreported, Family Court of Australia, Warnick J, 2 April 2008) Warnick J made orders that the father be deemed vexatious and therefore not be able to institute proceedings in the future without the leave of the Court.
26. I do not find that Mr [Kettle] has frivolously brought these applications. He does not impress me as doing what he has done for the fun of it, or lightly, or that he is vexatious in the sense that he is simply trying to drag the mothers to Court at every opportunity.
27. However, I do think that he is vexatious in the sense that he is, or has been, misguided. He has carried a sense of being wronged about various decisions, some of which have been aired today, but his response has been a vexatious one. Rather than sit down and assess whether something in relation to which he thought he was hard done by really presented a current problem to him, it would seem that his first reaction has been to dash out a Court document, serve it, and bring the solicitor for the mothers to Court. Examples are: an application for a mandamus directed to his Honour, Bell J, to provide reasons; there were complaints about decisions as long ago as August 2007. In that sense the father, in my view, has brought proceedings that were vexatious and, in my view, it is appropriate that any applications that he may wish to bring in the future be subject to the scrutiny of a Judge of Court before they are allowed to proceed.
…
29.However, the first point Ms Ellis made was that the father has been largely unsuccessful. That is true. In my view, there was an element of recklessness in some of the claims he wished to pursue. Though he is not legally trained, he had not made any attempt to ascertain whether this Court had any jurisdiction to make the sorts of orders that he sought.
30.People who act for themselves, as they are fully entitled to do, must nonetheless make a reasonable attempt to put themselves in a position to properly conduct the proceedings that they bring. It is careless and reckless to bring people to Court to confront claims that are, in fact, nonsense.
There were no such similar features in this appeal. Although unmeritorious it was not vexatious.
As we would not make orders in terms of either of the mother’s applications we would not grant leave to hear the application pursuant to s 118 should that be necessary.
Costs of the Independent Children’s Lawyer
The Independent Children’s Lawyer on behalf of the Legal Aid Commission of New South Wales, asked for an order for their costs. It was submitted that if the appeal against the discretionary judgment does not succeed that the Independent Children’s Lawyer is entitled to have their costs.
The Independent Children’s Lawyer asked for costs to be fixed at $2000.
The appellant father submitted that he could not afford to pay the costs of the Independent Children’s Lawyer in the event that his appeal was unsuccessful and that he thought the amount of $2000 to be unreasonable.
In this matter the Independent Children’s Lawyer was of assistance in the appeal. Although the father has limited means and pays Child Support, he is in employment.
In these circumstances where we have found that there was no merit in the appeal an order for costs should be made.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 27.10.08
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