P & L - [2006] FamCA 947

FAMILY COURT OF AUSTRALIA

P AND L

[2006] FamCA 947

APPEAL – Against orders of Steele J – Whether denial of procedural fairness to appellant – Whether trial judge failed to give adequate reasons for decision - Whether trial judge in error in dismissing the application of the appellant and removing matter from pending cases list – Transcript indicates application dealt with in its entirety –– Unable to discern any appealable error by trial judge – Appeal must fail.

APPEAL - Against orders of Lawrie J – Whether trial judge failed to appropriately exercise jurisdiction - Whether trial judge in error in failing to deal with injunctive relief sought by appellant restraining respondent taking children to particular church - Appellant wrongly interpreted trial judge’s reasons as failing to deal with the relief sought in appellant’s application as to do so would be inimical to s 116 of the Constitution - Consideration of principles relating to best interests of a child and effect of a parent’s religious beliefs on welfare of a child – Consideration of H and H [1998] FamCA 7 and principles considered therein – No conflict between these principles and reasoning of trial judge - No merit in this ground of appeal – Whether ‘miscarriage of justice by reason of fraud’ or inadequacy of reasons - Appellant referred to changed circumstances - Whether appellant denied procedural fairness – Absent transcript unable to determine whether appellant’s assertions have merit – Whether ‘suppression of evidence’ by trial judge – Appellant asserted insufficient time allowed for cross examination of two witnesses he had subpoenaed – Trial judge had regard to relevant affidavit material – No merit in this ground.

APPLICATION – By respondent for summary dismissal - Appellant’s grounds of appeal not entirely hopeless – Inappropriate to summarily dismiss appellant’s appeals.

APPLICATION – For leave to appeal orders of Le Poer Trench J – Consideration of appellant’s proposed grounds of appeal – Whether failure by trial judge to give adequate reasons – Whether jurisdictional error by trial judge in not assuming jurisdiction to deal with appellant’s allegations about the Potter’s House Church adversely influencing children’s welfare – Proceedings before the trial judge were contravention proceedings and not proceedings instituted by appellant for parenting orders or injunctive relief – No merit in these grounds - Whether denial of natural justice to appellant’s child – Child’s views were directly made known to trial judge – No breach of rules of natural justice - Whether failure by trial judge to consider relevant sections of the Act and case law in respect of best interests of children – Application before trial judge was one relating to contravention – Trial judge’s reasoning readily discernible – Not necessary for trial judge to refer to specific factors under s 68F(2) – Appellant’s other grounds of appeal do not demonstrate comprehensible or intelligible grounds of appeal – Whether leave required to appeal orders of Le Poer Trench J of 5 September 2005 – As primary matter a contravention, not a parenting application and one of orders was made pending further order, leave was necessary for appellant to appeal some of trial judge’s orders – Appellant has not demonstrated any error of law on part of trial judge or substantial injustice if leave not granted – Leave to appeal orders of 5 September 2005 refused.

APPLICATION - In relation to costs orders of Finn J – Whether extension of time should be granted – Consideration of principles relating to extension of time – Application before Finn J was an application under s 94(2D)(e) of the Act – Order for costs ancillary to that application – Head of power for making order was s 117 not s 94(2D) – Subject to extension of time in which to appeal, an appeal does lie to the Full Court in respect of a costs order in respect of procedural hearing – Not appropriate to grant extension of time - Application dismissed.

APPLICATIONS – Appellant’s application of 2 November 2005 already dismissed by Finn J in earlier proceedings and is res judicata – Appellant’s application of 14 January 2005 to adduce further evidence – Nothing in oral or written submissions to support application – Application of 14 January 2005 dismissed - Appellant’s application of 3 July 2006 to amend appeal book index – Application conditional only on basis of events which did not transpire – Application dismissed.

COSTS – Consideration of relevant matters under s 117 – No significant difference in parties’ financial circumstances – Appellant entirely unsuccessful in appeals and applications – Order that appellant pay respondent’s costs.

Family Law Act 1975 (Cth), Part IV Division 5, s 70NG, Part VII, ss 94(2D), 94(2F), 117 and 118
Family Law Reform Act 1995 (Cth)
Constitution of the Commonwealth of Australia, ss 51 placitum (xxi), 51 placitum (xxii) and 116, as contained in the Commonwealth of Australia Constitution Act 1900 (UK)
Federal Proceedings (Costs) Act1981 (Cth)
Family Law Rules 2004, ch 19, r 22.26
Family Law Regulations 1984, reg 15A

A v J (1995) FLC 92-619
Aarons, GWP & Co v Knowles,CE (1995) FLC 92-627
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Beck and Beck (2004) FLC 93-181
Bennett and Bennett (1991) FLC 92-191
Bigg v Suzi (1998) FLC 92-799
Bishop and Bishop (2003) FLC 93-144
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Finlayson v Finlayson and Gillam (2002) FLC 93-121
Firth and Firth; Boyer and Boyer (Interveners) (1988) FLC 91-971
Gallo v Dawson (1990) 93 ALR 479
Grimshaw and Grimshaw (1981) FLC 91-090
H & H [1998] FamCA 7
In theMarriage of H (2003) 198 ALR 383
K v K (1979) FLC 90-680
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541; (1996) 136 ALR 251
Mauger and Mauger (1966) 10 FLR 285
McMahon and McMahon (1976) FLC 90-038
Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor (2004) 219 CLR 365; (2004) FLC 93-174
Morrison and Morrison; Separate Representative (1995) FLC 92-639
Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800
Plows and Plows (1979) FLC 90-607
Re Wakim; Ex parte McNally & Ors (1999) 198 CLR 511
Rice and Asplund (1979) FLC 90-725
Rutherford and Rutherford (1991) FLC 92-255
Tormsen and Tormsen (1993) FLC 92-392
W and B [2002] FamCA 109
Warby and Warby (2002) FLC 93-091

APPELLANT: P

RESPONDENT: L

FILE NUMBER: SYF 5903 of 1999

APPEAL NUMBERS: EA 51 of 2004; EA 50 of 2006; EA 50A of 2006

DATE DELIVERED: 28 September 2006

PLACE DELIVERED: Sydney

JUDGMENT OF:  Bryant CJ, Warnick and Boland JJ
HEARING DATE:  8 February 2006 and by way of written submissions received from the Appellant, filed 25 July 2006
LOWER COURT JURISDICTION:                  Family Court of Australia
LOWER COURT JUDGMENT DATE:            21 December 2001 (Steele J), 4 February 2004 and 20 February 2004 (Lawrie J) and 5 September 2005 (Le Poer Trench J)
LOWER COURT MNC: [2001] FamCA 1571 (Steele J), [2004] FamCA 49 and
[2004] FamCA 149 (Lawrie J)
THE APPELLANT APPEARED ON HIS OWN BEHALF

SOLICITOR FOR THE RESPONDENT: Mr Cuddy

SOLICITORS FOR THE RESPONDENT: Stewart Cuddy & Mockler Solicitors

Orders

That Appeal No. EA 51 of 2004 is dismissed.
That the application for leave to appeal the orders of the Honourable Justice Le Poer Trench of 5 September 2005 and 5 May 2006 (Appeal No. EA 50 of 2006 and Appeal No. EA 50A of 2006) is dismissed.
That the applications by the father filed on 2 November 2005 and on 12 January 2006 to extend time to appeal the orders of the Honourable Justice Finn made 22 September 2005 are dismissed.
The Application in a Case filed by the father on 14 January 2005 is dismissed.
The Application in a Case filed by the father on 12 December 2005 is dismissed.
The Application in a Case filed by the mother on 25 January 2006 is dismissed.
The Application in a Case filed by the father on 3 July 2006 is dismissed.
The father pay the mother’s costs of the appeals and applications filed 14 January 2005, 12 December 2005 and the applications filed 2 November 2005 and 12 January 2006 to extend time to appeal the orders of the Honourable Justice Finn made 22 September 2005 as agreed, and failing agreement, as assessed under Chapter 19 of the Family Law Rules 2004.

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBERS: EA 51 of 2004; EA 50 of 2006; EA 50A of 2006

FILE NUMBER: SYF 5903 of 1999

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

P (‘the father’) brings appeals against orders made respectively by Steele J, and Lawrie J, and he also seeks leave to appeal against interlocutory orders made by Le Poer Trench J and an extension of time to appeal costs orders made by Finn J. L (‘the mother’) seeks orders for summary dismissal of the two appeals, and opposes the applications in respect of the orders of Le Poer Trench J and Finn J.

The appeals arise out of litigation between the parties about their three children which initially commenced in January 1999, and which has been ongoing since that time. Central to the dispute is the father’s assertion that the Court has failed to deal with matters relating to the children’s religious upbringing.

The father issued a number of applications in respect of the appeals. He sought to issue various subpoenas to members of the Court’s administrative staff to both produce documents and give evidence. We indicated during the course of the hearing we would give reasons in respect of the applications to adduce further evidence in these reasons.

J, the eldest of the parties’ three children, is now aged 18 years. He lives with the father. E, the parties’ second child, was born in 1990 and is aged 16 years. E lives with the mother. There are no current orders in respect of E, previous residence and contact orders having been discharged by Le Poer Trench J on 5 September 2005. The father does not now wish to pursue any application that E should live with, spend time with, or communicate with him. D, the parties’ youngest child, was born in 1992. He is aged 14 years. On 13 July 2006, that is, after we heard oral argument in these appeals and applications, orders were made by consent for D to live with each of the parties in an equal ‘week about’ arrangement.

We discern the gravamen of each appeal, and the application in respect of the interim orders of Le Poer Trench J, is the father’s position that the judicial officers who have dealt with the matter have failed, he asserts inappropriately, to grant injunctive relief restraining the mother from taking the children to the church she attends, which is the Potter’s House Church, or more generally, in some manner, protecting the children from the tenets of the Potter’s House Church. In the father’s final summary of argument he sets out the orders he seeks if his appeals are upheld, and we remit the matter for hearing before a single judge, or re-exercise the discretion:

‘An immediate interim order by which the mother is restrained by injunction from taking [E], or allowing [E] to be taken, to any meetings of the Potters House.
A leave to the father to join the Potters House to the proceedings and to file an application be [sic] which the Potters House (and/or its leaders) will be asked to show cause why an order from the Family Court should not issue by which the Potters House would be restrained from allowing [E] and [D] to attend at any of their meetings’.

APPEALS AGAINST ORDERS MADE BY STEELE J AND LAWRIE J, APPLICATIONS IN RESPECT OF ORDERS OF LE POER TRENCH J

On 8 February 2006 the father’s appeals were listed before us. The first appeal was an appeal against orders made by Steele J on 21 December 2001.

By the time of the hearing before us J had almost attained the age of 18 years, and accordingly, the father no longer pursued any appeal against the orders insofar as they purported to concern J.

The father also appealed against Order 1 made by Lawrie J on 4 February 2004 and Orders 1 and 2 also made by Lawrie J on 20 February 2004.

The order made by Lawrie J on 4 February 2004 dismissed, on a summary basis, the father’s application seeking orders restraining the mother from involving D or E in meetings of the Potter’s House Church, or taking the children to any other religious group’s meetings without the father’s written consent. The father also sought orders for ‘suitable arrangements … for extended visitation of [D] and [E] with their father’. In the event the restraining orders were made the father sought the children be ‘subject for a psychological assessment in order to determine the extent, if any, of the “expert counselling” that they may require’.

Lawrie J’s orders of 20 February 2004 were made at the conclusion of an application pursuant to s 118 of the Family Law Act 1975 (Cth) (‘the Act’). The trial judge made an order restraining the father from instituting, without prior leave of the Court, any proceedings ‘which seek orders, or raise issues, about the attendance of the children of the parties (or any of them) at the Potters House Church and/or the relationship of the children (or any of them) with that Church’. Order 2 of the trial judge’s orders provided that the father pay the mother’s costs in the sum of $1000.00, such costs to be paid within three months.

Also before us on 8 February 2006 was an application to extend time to appeal, and if successful in that application, to appeal costs orders made by Finn J on 22 September 2005.

Subsequent to the hearing of the appeals and the application set out above, the father filed an application to extend time to appeal orders made by Le Poer Trench J on 5 September 2005. He also filed a further application for leave to appeal, in the time prescribed by the Family Law Rules 2004 (‘the rules’), against orders made by Le Poer Trench J on 5 May 2006.

On 20 June 2006 Boland J, sitting as a single judge of the Appeal Division, extended time to the father to file an application for leave to appeal interlocutory orders made by Le Poer Trench J on 5 September 2005.

The application for leave to appeal the interlocutory orders made by Le Poer Trench J and the appeal against his Honour’s orders made 5 May 2006 were consolidated, and directions made for the application and appeal to be dealt with by way of written submissions. However, no doubt as a result of the consent orders made on 13 July 2006, it appears the father does not pursue his appeal against the orders made on 5 May 2006.

Final written submissions were received from the father on 25 July 2006. No written submissions were received from the mother in respect of the appeal against the orders of Le Poer Trench J of 5 September 2005.

In summary, the father’s appeals, and applications for leave to appeal, fall into three areas:

·    appeals directed to the asserted failure by each of Steele J, Lawrie J and Le Poer Trench J to make appropriate parenting orders, and orders restraining the mother allowing the children to participate in religious worship and meetings conducted by the Potter’s House Church;
·    the order restraining the father bringing proceedings in respect of the children’s religious practices without leave of the Court; and
·    costs orders.

From the father’s submissions, both written and oral, we discern considerable overlap between the various appeals and applications for leave to appeal.

It is important we record at the beginning of our reasons that we have been provided by the father with a copy of the orders made on 13 July 2006. The orders were orders made by consent, and they provide for D to live with his parents in an equal shared week about parenting arrangement, that each party is ‘to respect [D’s] wishes in relation to attending church at all times in the future’ and ‘[n]either party is to badger, harass, or endeavour to convince [D] about attending or not attending a particular church’.

APPLICATIONS TO ADDUCE FURTHER EVIDENCE

Orders sought by the father

On 14 January 2005 the father filed an Application in a Case marked ‘To Adduce Further Evidence’. The orders sought were:

‘1.That the Applicant be granted leave to adduce further evidence by way of Subpoena of the Court Documents (Refer Attachment “A”).

2.   That the Applicant be granted leave to adduce further evidence by way of subpoena of the Court Staff (Refer Attachment “A”).
3.   That the Applicant be granted leave to issue Interrogatories to two Family Court Judges (Refer Attachment “A”).
4.   That the Applicant be granted leave to adduce further evidence re. the children’s involvement with the Potters House sect (Refer Affidavit, Section “B”).
If the 1, 2, 3 and 4 above cannot be substantially granted or is not substantially granted:
5.   That the Applicant’s Appeal be summarily dismissed PROVIDED that he be granted leave to approach the High Court.’

On 2 November 2005 the father filed an Application in a Case in which he sought orders in the following terms:

‘1.That the costs of the transcripts for the Appeal proceedings (EA51/2004) be born [sic] by the Attorney-General’s Department.
2.That the leave be granted to file an out of time application regarding Orders No. 1 and No. 4 delivered by the Hon Justice Finn on 22nd September 2005 – if such application is found to be of right.’

This application was dismissed by Finn J on 12 December 2005. We refer to the dismissal of the application because before us the father, in the course of his oral submissions, sought we give reasons in respect of his application for the provision of transcript. We discern he did not appreciate that this application was not before us having been determined by Finn J.

The father filed an Application in a Case on 12 December 2005. In that Application he sought the following orders:

‘1. That the Respondent Mother be ordered to make a statement of disclosure as follows:
(a) If she paid her legal costs and if so, the approximate figure to the best of her knowledge.
or
(b) if the costs were paid by any other source on her behalf, what is the source.
(a) and (b) above for each of the following proceedings:
(i)Local Court, Family Matters – Mr. Mitchell proceedings (years 1998 – 2000)
(ii)Family Court – Chisholm J proceedings (year 2000)
(iii)Family Court – Steele J proceedings (year 2001)
(iv) Family Court – Lawrie J proceedings (2003 – 2004

2.That the order No 4 of the orders of the Hon Justice Finn, of 22nd September 2005 be set aside.’

On 12 January 2006 the father filed a further Application in a Case in which he sought the following orders:

‘1.That the leave be granted to file an out of time application regarding Order No.4 (cost order) delivered by the Hon Justice Finn on 22nd September 2005.
2.That the father be at liberty to file the above application, if leave granted, after the appeal proceedings.
3.That the father be at liberty to join any other appliaction [sic] regarding the cost of the proceedings, with the above appliaction [sic], if leave granted.’

As we have already noted, on 22 May 2006 the father applied to extend time to appeal orders made by Le Poer Trench J on 5 September 2005. Pursuant to that application the father filed a document, without leave of the Court being sought and obtained, which he described as ‘Notice of Appeal – Amended 25 July 2006’. In that document he deleted the appeal against orders made by Le Poer Trench J on 5 May 2006, although it appears he has not filed a Notice of Discontinuance in respect of that appeal.

On 3 July 2006 the father filed an Application in a Case in which he sought an order to amend the appeal book index. However as noted by the father he only sought to pursue the amended index if the orders which were subsequently made were unsatisfactory. We mention and dismiss this application to complete the Court record.

Manner of dealing with the applications

We propose to deal with each of these applications, to the extent not discussed and determined in our considerations of the substantive appeals, at the conclusion of our determination in respect of those appeals.

APPLICATION BY THE MOTHER FOR SUMMARY DISMISSAL OF THE APPEALS

Orders sought by the mother

By Application in a Case filed 25 January 2006 the mother sought the following orders:

‘1. That the appeals filed in the respect of the Orders of the Honourable Justice Steele and of the Honourable Justice Lawrie be dismissed.
2.That the applications filed by the Appellant in the proceedings, including leave to appeal from the Orders of the Honourable Justice Finn be dismissed.
3.That the Appellant pay the Respondent’s costs of this application, both appeals and in respect of his applications filed in the proceedings.’

The mother’s application was supported by an affidavit by her solicitor Mr C sworn 23 January 2006. In his affidavit Mr C deposed that the appeal books prepared by the father in respect of Order 1 of the orders of Lawrie J of 4 February 2004 and Orders 1 and 2 of her Honour of 20 February 2004, and the appeal against Order 9 of the orders of Steele J of 21 December 2001 did not conform with the orders or directions made by Finn J on 22 September 2005.

Mr C submitted that, in respect of the appeal against the order of Steele J, the father had failed to reproduce the affidavits that were before the trial judge. It is further asserted he failed to produce the full transcript of the proceedings.

In respect of the orders of Lawrie J, Mr C asserted that the father had failed to produce the transcript, and it appears, had wrongly included an annexure to his affidavit of 22 September 2003 in the appeal books (pages 329 - 336) in respect of the appeal against the orders of Steele J.

It was submitted on behalf of the mother:

‘Without the ability to test the terms of discussions in Court and statements made by [the father] and the judges hearing both cases and in Justice Lawrie’s appeal case, the separate issues, it is very hard to advise the respondent and … determination by an appellate court is nearly impossible’.

Relevant law - summary dismissal

The principles to be applied in an application for summary dismissal are well known. They have been enunciated in a number of recent cases including Bigg v Suzi (1998) FLC 92-799 and Beck and Beck (2004) FLC 93-181.
In Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544 – 545; (1996) 136 ALR 251 at 255 - 256, Kirby J said:
‘The approach to be taken by the Court to the Commonwealth’s application for summary relief is not in doubt:
1.      It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.      To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3.      An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.      Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.      If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim; and
6.      The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.’ (footnotes omitted).
Order 8 of the orders made by Finn J on 22 September 2005 required the father to include in the appeal books specified affidavits and transcript. Our examination of the appeal books indicates that the documents comprised therein include the documents that are specified in Finn J’s orders, but do not include annexures to the father’s affidavit sworn 19 September 2003. However, parts of the annexures are set out later in the appeal book at pages 101 to 178. At pages 179 to 187 the father has set out psychological reports prepared in 1996 in respect of both himself and the mother. There was no order that such documents be included in the appeal book, and the status of the documents is subject of dispute. We will return to consider these documents when discussing the appeal against Lawrie J’s orders.

We accept there is no transcript in the appeal books as provided in Finn J’s orders of 22 September 2005 in respect of the appeal against Lawrie J’s orders, and very limited transcript in respect of the proceedings before Steele J.

Discussion - summary dismissal

On 12 December 2005, when dealing with the father’s application that the Attorney-General provide transcript of the proceedings, Finn J noted:

‘ 2.
…
(ii) that the father has informed the Court that he will be unable to provide the entire transcript of the hearings which relate to the orders which are the subject of the appeals; and
(iii) that the Court has advised the father that the appeals could be [sic] well not succeed if the entire transcripts are not included in the appeal books’.

As will become apparent from our subsequent discussion, the absence of transcript has made it impossible for us to discern whether or not there is any merit in some of the grounds raised by the father, in particular, as to what applications were actually before Steele J. However the father does raise other matters, including grounds relating to lack of reasons by
Lawrie J in failing to deal with changed circumstances, including his availability to care for the children. We accept that this ground is not dependent upon the provision of transcript.

Conclusions

It is apparent to us that the father raises some arguable grounds of appeal and his appeals cannot be described as entirely hopeless. In this situation we find it would be inappropriate to summarily dismiss his appeals against the orders of Steele J and Lawrie J.

MANNER OF DEALING WITH THE APPEALS, APPLICATION FOR LEAVE TO APPEAL AND APPLICATION FOR LEAVE TO EXTEND TIME TO APPEAL

Although we identified at the beginning of our reasons the three issues which we discern require determination, we are cognisant that the father, who is self represented, and who has been involved in extensive litigation in this Court, may not be satisfied that we have dealt with discrete issues he raised in respect of each appeal without dealing with the appeals separately having regard to his individual Notices of Appeal. Dealing with the appeals in this manner will, in our view, involve significant overlap of issues. Accordingly, we will limit our discussion when an issue has already been dealt with by us earlier in our reasons.

At this point we also note the difficulty in dealing with the father’s grounds of appeal which are framed in very general terms, submissions which contain irrelevant and inadmissible material (both in the Notices of Appeal themselves and in the father’s submissions contained therein) and his Outline of Argument which does not conform with r 22.26 of the rules.

We will deal with each appeal and each application seriatim.

BACKGROUND

In order to understand the father’s complaints, it is necessary to have an appreciation of the background history of this matter. That history is conveniently set out in the judgments of Chisholm J and of Finn J to which we were referred by the father.

The father was born in Serbia in 1941. He is presently aged 65 years. The mother was born in Poland in 1957. She is presently aged 49 years. The parties married at the Potter’s House Church, Sydney in 1987. Chisholm J noted:

‘15. Both joined that church at about this time. They became very involved in it. They spent time studying the Bible. They began to associate with friends from the church. This tended to displace other activities, at least for the husband, who stopped playing chess and seeing old friends. He spoke of becoming “preoccupied” with church life, and with his “zeal” for his new faith.
…
18. There was some kind of “split” in the church in about 1990, and the husband left the church. He was disappointed the wife did not do the same. After some months, a new pastor, Mr [W], took over and the husband rejoined the church in about April or May 1990. He remained with it until 1994.’

J, who was born in 1988, commenced attending church services with the parties when he was one week old.

E was born in 1990.

Chisholm J noted that, in 1990, the mother alleged an incident of violence by the father arising from a dispute about whether J, then 20 months old, should be taken to a night service at the church, as the mother wished. The father was subsequently charged and was placed on a bond to be of good behaviour for 12 months. Chisholm J noted the father said ‘he pleaded guilty for the sake of peace in the home’.

The youngest child D was born in 1992.

In 1993 the father was retrenched from his employment.

In 1994 the father left the Potter’s House Church. The mother and children continued to attend the church ‘as much as three to five times a week’ against the father’s opposition.

The parties, according to the mother, separated under the one roof in 1998 and remained living under the one roof until the trial before Chisholm J in December 2000.

On 28 January 1999 the mother commenced proceedings in the Local Court, Family Matters seeking final parenting orders and property settlement.

On 13 May 1999 interim orders were made in the Local Court, Family Matters restraining the mother from permitting the children to attend the Potter’s House Church except on Sunday mornings, or with the father’s consent. Between May 1999 and January 2000 the father consented to the children attending services at the Potter’s House Church, other than the Sunday morning services, on a number of occasions.

In September 1999 the parties’ marriage was dissolved. Between 13 and 15 October 1999 the mother’s application for final orders was heard in the Local Court, Family Matters. Reasons for judgment were published and final orders made on 1 May 2000. Magistrate Mitchell’s orders provided that the children live with the mother, but restrained her from removing the children outside the Sydney metropolitan area, and involving them in some religious activities associated with the Potter’s House Church. On 11 May 2000 the father filed an appeal against the orders made by Magistrate Mitchell.

The appeal (being a hearing de novo) was heard by Chisholm J over four days commencing 11 December 2000 and reasons for judgment were delivered and orders made on 11 January 2001. The orders provided that the children live with the mother and have reasonable contact with the father including each alternate weekend. Order 3 of the orders provided that each parent retain parental responsibility for the children under the then s 61C of the Act.

On 6 September 2001 the father filed an application seeking orders that J live with him.

On 19 September 2001 interim orders were made for extended contact by the father with J.

The father’s application was determined, substantially by orders made by consent, by Steele J on 21 December 2001.

On 10 October 2003 the father filed an application which was heard by Lawrie J on 19 December 2003. Lawrie J dismissed the father’s application.

On 20 February 2004 the mother’s application seeking orders under s 118 of the Act was heard and determined by Lawrie J.

On 21 June, 22 July and 9 November 2004 the father’s application to extend time to appeal the orders made by Chisholm J on 11 January 2001 and Steele J on 21 December 2001 was heard by Finn J.

On 22 September 2005 Finn J delivered reasons for judgment and made orders dismissing the father’s application for an extension of time to file an appeal against the orders of Chisholm J made 11 January 2001, but granted an extension of time to file a Notice of Appeal against the orders of Steele J made on 21 December 2001.

APPEAL AGAINST ORDERS OF STEELE J

Notice of Appeal

By Notice of Appeal dated 12 December 2005 the father appeals ‘[o]rders by the Hon Justice Steele of 21st December 2001 as shown in the “MINUTES of ORDERS sought by RESPONDENT WIFE”: Order No. 9’.

Paragraph 9 of the Minute of Orders sought provides as follows:

‘That all other applications pending before the Court be dismissed’.

Paragraphs 1 to 9 of the Minute of Orders sought (save for orders 2(a) and (d)) were made by Steele J by consent. Order 4 of the orders of Steele J, to which the Minute of Orders sought is annexed, is in the following terms:

‘That the matter be removed from the Active Pending Cases List.’

The father sets out two grounds of appeal as follows:

‘Ground 1: Miscarriage of Justice by Reason of Fraud
Ground 2: Denial of Procedural Fairness and Inadequacy of Reasons’. (original emphasis)

Thereafter, in his Notice of Appeal, the father set out what were in effect submissions in respect of the two grounds of appeal. The submissions related to a hearing before Registrar Henderson (as she then was).

The father also made assertions about a family report prepared by Ms K, and the circumstances leading to the preparation of the Minute of Orders sought by the mother.

The father also set out a number of assertions concerning the mother’s receipt of Legal Aid, matters relating to the parties’ property proceedings, and the production of a final judgment from Steele J’s ex tempore reasons, none of which appear to us to have any relevance to the order the subject of appeal.

From the oral submissions made to us at the hearing of the appeal, we discern that the father’s complaint is that the trial judge was in error in making an order dismissing all applications and removing the matter from the pending cases list, as not all orders sought by the father in his application filed 6 September 2001 were determined by the trial judge at the hearing commencing on 6 December 2001.

The father’s application filed on 6 September 2001 sought the following orders by way of final orders:

‘Section B: Final Orders Sought
1.That my son [J] resides with me.
2.That suitable arrangements be made between the parties for at least once a week (apart from weekends) meeting between [J] and his siblings, namely [E] and [D].
3.That the Mother be restrained by injunction from taking any of the children, [J], [E] or [D], to the evening or night meetings organised by her church, the Potters House.
4.That the Mother be restrained by injunction from giving tithes (10%) or any portion to her church, the Potters House, from the monies she receives on behalf of the children either from the Department of Social Security or from the Father.
5.That the Father be allowed visitation contact with [E] and [D] every second weekend, Friday evening till Sunday evening and up to half of school holidays plus any other time as arranged by the parties.
6.That the Mother be allowed visitation contact with [J] every second weekend, Friday evening till Sunday evening and up to half of school holidays plus any other time as arranged by the parties.
7.That neither the Mother nor the Father nor any of the children be restricted from a reasonable phone contact with any of the children or the parents.’

The trial judge’s reasons for judgment

At the commencement of his settled reasons for judgment, following delivery of his ex tempore judgment, Steele J noted:

‘1) These are proceedings for parenting orders brought by the Applicant husband in relation to a child, [J], who at 13½ years of age, is the oldest of the 3 children of the parties. For reasons which I will advert to later, the proceedings have been expanded to include questions of contact with the other 2 children.’

Having set out the history of earlier proceedings, which resulted in orders in the Local Court made by Magistrate Mitchell on 1 May 2000, the appeal from those orders, and the subsequent orders made by Chisholm J, the trial judge said:

‘5) It was thought that a decision as to the household in which [J] should reside has some urgency having regard to his newly expressed wishes and Registrar Henderson made an order for expedition limited to a 2 day hearing of that issue.’

His Honour then, significantly, noted:

‘6) The parties at the commencement of the trial agreed that this hearing would be limited to the issue defined as to “whether orders relating to residence of and contact with [J] should be changed, having regard to expressions of wish made by [J] since orders were made by Chisholm J. on 12 January 2001”. Later in the trial, having regard to recommendations in the Family Report, the parties agreed it may be necessary to consider a possible option involving extended contact with the husband by the 2 younger children during [J]’s time with the husband. Conversely if [J] was to reside with the husband, it was necessary to consider the option suggested of the other children having longer contact with the husband, for the purpose of giving the children as much time together as possible.’

The extract of the transcript of 21 December 2001 which appears in the appeal book indicates the mother’s then solicitor referred the trial judge to typographical errors in the ‘document I emailed through to your Honour’s associate’ (Minute of Orders sought). The mother’s solicitor then advised the trial judge the orders ‘are agreed by everybody’ but pointed out the document contained some typographical errors, which required a change of the time in one order from 6.00 pm to 8.30 pm. The trial judge then said ‘[y]es, all right. Are they the only alterations?’ to which the mother’s solicitor replied ‘I apologise for those errors, your Honour’. The trial judge then proceeded to give his ex tempore reasons for judgment on two issues which remained in dispute between the parties, after which he said ‘[n]ow, as I understand it, Mr [H], you have prepared orders which give effect to those which are made by consent and those orders which I have just made’ (referring to the changeover time for contact).

The trial judge then said ‘[c]an I just hand to each of the parties a copy of those orders. I’ve had them typed up. I had the word “amended” to differentiate it from the orders which were filed earlier in the day, and you’ll see that they’re underlined. So, I’ll provide each of you with a copy’.

The trial judge then requested each of the parties to strike out the words ‘“Sought by the respondent wife”’ and noted ‘I’ll have a copy of that marked, “Filed in Court,” to identify it’. Thereafter the trial judge referred to s 65D(a)(ii) of the Act.

The trial judge then had a discussion with the father where he said:

‘Now, [to the father] can I just say this to you? It seems to me that there’s a tendency for there to be – for you to be a little bit trigger happy. That is, too quick to come back to Court. There is going – there will be difficulties if the children – if you and your ex-wife are involved in litigation all the time. I’m saying this to you purely as a matter of advice.’

The father replied ‘I understand’.

The trial judge thereafter adverted to the situation where an order could be made under s 118 of the Act.

After further discussion when the father said ‘I appreciate your advice, but if I weigh that they are more affected psychologically damaged by the way she handles them’. His Honour said:

‘HIS HONOUR: Well, I understand what you say - -
[THE FATHER]: It’s my duty.’

We do not have the benefit of the transcript of the commencement of the proceedings to ascertain precisely what was put to the trial judge as the issues requiring determination. Notwithstanding the absence of such transcript, we think the discussion between the trial judge and the father after the making of the orders clearly implies that the application had been dealt with in its entirety, and there was no outstanding part of the application to be determined by the Court.

We are fortified in our conclusion that there was no ‘Miscarriage of Justice by Reason of Fraud’ (original emphasis) as it is clear from the transcript a copy of the amended Minute of Orders sought, which remained on the Court file, was provided to the father and that Minute included paragraph 9.

The father raised the issue of denial of procedural fairness and inadequacy of reasons. We find this challenge, prima facie, difficult to relate to the order the subject of appeal. It appears, giving ground 2 its widest possible interpretation, what the father asserts is that the trial judge was wrong in dismissing the balance of the orders sought in his application without determining the relief sought in paragraphs 3 and 4 of his application filed 6 September 2001. In these paragraphs the father sought to limit the mother taking the children to evening or night meetings at the Potter’s House Church, and that she be restrained from tithing any proportion of funds received from the Department of Social Security for the children or from the father to the church. We have dealt with this assertion in our discussion of ground 1.

The father asserted that if we are unable to properly determine this aspect of his appeal, that we should deal with the order sought in paragraph 1 of his Application in a Case filed 2 November 2005 in which he seeks the costs of the transcript and of the appeal be borne by the Attorney-General’s Department.

In his submissions in respect of this appeal the father said:

‘I filed an application to this Court the costs of transcripts to be paid by the Attorney-General. It was dismissed for the lack of jurisdiction. I have no problem with that.’

Whilst it is difficult to reconcile the father’s conflicting assertions on the question of transcript, we find no merit in his first submission that we should revisit the question of transcript. That issue was heard, and in our view properly determined, by Finn J and is res judicata.

In his Application in a Case filed 14 January 2005 marked ‘To Adduce Further Evidence’, the father sought orders which would enable him to adduce further evidence by way of subpoena of Court documents. He referred to the subpoena as being Annexure A to the application. There is no such annexure. The father did however annex to his affidavit in support of the application a draft subpoena addressed to the Registry Manager, Sydney Registry of the Court in which he sought production of the following documents:

‘1.Copy of the request to the Family Court or to any of its staff, made sometime between 21st December 2001 and 3rd March 2003, by which a copy of written Judgement [sic], produced by the Hon Justice Steele for the case No. SY5903/99, had been requested to be sent to [the father], of [ ], who was a party to the proceedings.
2.Copy of the E-mail request, sent by Mr [H] (of [PKC] & Co), by which he requested a copy of the above Judgement [sic] from the Family Court of Australia. The E-mail request has been sent by Mr [H] to the associate of the Hon Justice Steele, most probably sometimes in February 2003 – if it was sent at all.
3.Copy of the reply to the above E-mail sent to Mr [H] by the associate of the Hon Justice Steele (most probably Ms [O]) - if it was sent at all.
Note: Refer the attached letter for the explanation.’

The father annexed a second draft subpoena to his affidavit addressed to ‘Family Court Staff, Sydney Registry (as listed in the attached sheet)’. This was a draft subpoena requiring the attendance of a number of Court personnel (associate to Chisholm J, Family Court Officer named A (surname unknown), associate to Steele J (in December 2001), associate to Steele J (in February 2003), associate to Lawrie J (in October 2003/February 2004) and Ms A, Registry Manager).

We are unable to discern from the father’s written and oral submissions before us anything which would support the calling of such persons or access to identified documents as having any relevance to the order the subject of the appeal. Accordingly we find the application filed 14 January 2005 should be dismissed.

Conclusions

We are unable to discern any appealable error by the trial judge in the making of Order 4 of his orders which reflected paragraph 9 of the Minute of Orders sought. Accordingly the appeal against the orders of Steele J must fail.

APPEAL AGAINST PARENTING ORDERS OF LAWRIE J

Notice of Appeal

The father’s original Notice of Appeal against the orders of the trial judge was filed on 18 May 2004 and further amended by an Amended Notice of Appeal filed 21 June 2004.

The father subsequently filed a document described as ‘Joint’ Notice of Appeal on 12 December 2005. In the appeal book the father deleted the word ‘Joint’ and made other deletions to the document which do not appear on the original document in the appeal file. There is no identity of grounds between those filed on 18 May 2004, and those now appearing in the appeal book.

As the parties’ written submissions are directed to the grounds of appeal set out in the appeal book we have confined our discussion to those grounds.

The father’s Notice of Appeal filed 12 December 2005 sets out five grounds as follows:

‘Ground 1: Jurisdictional Error
  If Ground 1 not sufficient:
  Ground 2: Miscarriage of Justice by Reason of Fraud
  Ground 3: Denial of Procedural Fairness
  Ground 4: Error of Law – Inadequate Reasons for Judgment
  Ground 5: Suppression of Evidence’

As with the father’s grounds of appeal in respect of the appeal against the orders of Steele J, the Notice of Appeal contains a mixture of purported grounds of appeal and submissions.

Trial judge’s reasons

The trial judge noted the application before her was one filed by the father on 10 October 2003 in which he sought the following orders:

‘1. a)That my children, namely, [J] (born [in] 1988), [E] (born [in] 1990) and [D] (born [in] 1992), be protected from the influence of the Potters House, a religious sect, by restraining their mother, [ ] from involving them in any of sect’s meetings.
b)That the mother be restrained from taking our children to any other religious group’s meetings without father’s written consent.
c)That suitable arrangements be made for extended visitation of [D] and [E] with their father.
d)If a) and b) above are granted, that all three children be subjected for a psychological assessment in order to determine the extent, if any, of the “exit counselling” that they may require.’

The trial judge noted the mother opposed all of the orders sought by the father and that she also sought that Order 1 be summarily dismissed on the basis of the principles set out in Rice and Asplund (1979) FLC 90-725.

Her Honour thereafter referred to previous litigation between the parties including the judgments delivered by Chisholm J and Steele J. Her Honour said ‘[i]t is clear that the threshold test of whether there has been a change in circumstance which would justify a re-opening of the issue and a further hearing can be dealt with before the matter is prepared and set down’. Her Honour recorded a brief background history of the parties, and then set out a number of paragraphs from the judgment of Chisholm J dealing with the father’s concern that the mother continued to take the children to the Potter’s House Church.

We find it appropriate that we also set out the passages of the judgment of Chisholm J as quoted in her Honour’s judgment.

‘12. In paragraph 130 he said:
“It seems that the husband believes that the church brainwashes its members. There are however a number of difficulties in accepting this. Firstly, there is no evidence about brainwashing techniques used by the church attended by the wife, even though the husband would seem to be well placed to give such evidence. Secondly, the evidence does not suggest that either the wife or the children have been brainwashed. The wife says, and I accept, that the children have friends and contacts outside the church. Further, although since 1994 the wife has been a member of the church and the husband has been conducting a campaign of criticism of it, there is no evidence that the wife has done anything to alienate the children from him. There is a striking contrast in this respect between her behaviour and his own behaviour in relation to his daughter [S], a matter I discuss elsewhere.”

13. His Honour considered material which the husband produced about the Church which indicated it had features in common with “cults”. His Honour said in paragraph 135:
“My conclusion is that I agree with the husband that the material gives cause for concern about the practices of the churches in the United States. It gives a lesser cause for concern about the practices of the Church in Australia, because it is not clear, at least to me, whether they can be assumed to do things in the same way as the American churches features [sic] in the materials. Much the same comments apply to the material annexed to the husband’s affidavit.”

and in 137:
“I would summarise my conclusion by saying that the material gives rise to legitimate concerns about the possible effects of the church on the children. To that extent, I agree that the husband’s behaviour has a rational basis. I do not find that his criticisms of the church in themselves are irrational or without basis. However the way he has handled the matter is a different issue, and in my view it displays some of the same obsessive qualities as his behaviour relating to other topics, including this former adherence to the church (which he now regards as a mistake) …”’.

Her Honour then said:

‘14. The material which the husband filed in support of his application makes it clear that he is concerned with the Church generally, not with particular problems which have arisen with his children. There is no evidence that they are now being alienated from him or are suffering in some fashion. His concern arises from the conclusion he has reached about the church. I have attempted to explain to the husband that the court, because of the constitutional limitations of its jurisdiction, cannot act generally to investigate the church on the basis that this will reveal it is an improper place for children in general, but looks at individual children to consider their welfare in the circumstances where they demonstrate that they must have an actual problem which is impinging on their welfare, rather than a theoretical exposure to risk.’

The trial judge said the matters raised by the father were considered by Chisholm J and were not ‘new circumstances’. Her Honour concluded that the father had not brought forward any evidence which constituted a change of circumstance that would take the case ‘over the threshold test set out in Rice v Asplund’. The trial judge thereafter dismissed Order 1 sought in the father’s application.

The parties’ written and oral submissions

As we have already noted, the father set out a number of submissions within his grounds of appeal. In his summary of argument in respect of this appeal, the father said ‘[t]here is not much more that I can add to the argument in addition to what I have stated in my grounds of appeal, book A, … except to draw the Court’s attention to some additional material’.

In summary, the father asserted:

·    the trial judge failed to appropriately exercise jurisdiction to make orders as sought by the father in respect of the Potter’s House Church;
·    the trial judge failed to make orders which could prevent harm which may occur to the children as a result of their exposure to certain circumstances; and
·    the trial judge failed to take into account changed circumstances due to the father’s redundancy, which redundancy made him available to care for the children.

In his written submissions, the mother’s solicitor noted:

‘It is submitted that the Court can alter family arrangements where religious beliefs or practices will or may cause harm to the children. This is statutory and part of the parens patriae function of a specialised family court.’

The mother’s solicitor further submitted there were two relevant questions. First, was there proper evidence that harm was being caused to either of the children by the conduct of their mother, and ‘[s]hould the Court prefer one form of Christian expression of worship or beliefs over another?’.

He further submitted, by reason of lack of transcript, it was impossible to know whether there was evidence before the trial judge which meant she was ‘bound to accept and alter residence or order restraint to protect the children’.

Discussion

Before the trial judge the father relied on his affidavit sworn 9 October 2003 in support of his application. We are unable, absent transcript, to ascertain the trial judge’s treatment of inadmissible or potentially inadmissible material in that affidavit. The father asserted that the mother had enrolled the two younger children in the T Christian School against his wishes. He also deposed to the mother’s employment doing housework for other people, and that she had not allowed the children to spend extra time with him.

The father annexed to his affidavit material relating to ‘exposition of the method of operation of the groups like the Potters House’ (the annexures are not contained in the appeal book). He further relied on an affidavit sworn 19 September 2003 in which he deposed ‘[n]either judge considered the Section 68F(g) [sic] of the Family Law Act in relation to the children’s exposure to the Potters House and the potential psychological harm that they may suffer as a result of their involvement with this group’. He also deposed:

‘An easy way out of another costly hearing would be that the chief witness, namely Mr [W], the pastor of the [P] Potters House (where my children attend), who is also the chief executive of the ACT, NSW and QLD Potters House churches and the member of the Australian Pastors Executive Committee, confirms that the statements made in this Affidavit and the Attachments, concerning the Potters House and him personally, are in essence true.’

The father went on to request the Court to ‘warn’ the costs of the hearing may be awarded against Mr W and the Potter’s House Church. It is appropriate we note that neither Mr W nor the Potter’s House Church were parties to the proceedings.

Having set out the background history of the parties and orders made by Steele J on 21 December 2001, the father deposed:

‘By these orders [J] was to reside with me while [E] and [D] with the Mother. The non-residing children were to spend three days every other weekend and half school holidays with the non-residing parent. These arrangements are still in force and are being observed by both parties.’

Whilst noting he proposed only to file ‘partial evidence’ on the application the father said:

‘In case that the above co-operation is not forthcoming, by being allowed to subpoena certain materials from the Potters House (and other sources) I will be able to prove beyond any reasonable doubt that the Potters House is not a place for my children, for any other children or for that matter for any vulnerable person. I will also be able to prove that the Potters House has been engaged in dishonest practices for years for the sole purpose of avoiding transparency to their financial dealings. This evidence will prove that they are not a “religious” organisation, a claim that they themselves make, therefore, the Family Court of Australia will not be seen as intervening in the matters of religion.’

The father thereafter set out a number of his criticisms of Chisholm J’s judgment. We note that the father did not seek to appeal Chisholm J’s decision within the time provided by the rules and that his application to extend time in which to appeal was heard in 2004 and subsequently dismissed.

The father referred to a diary he kept prior to separation and statements made by the children to him around the time of swearing his affidavit. The father thereafter set out a number of conversations he asserted occurred between himself and J, principally concerning the practice of tithing a share of income to the church. The father also related two incidents of D reporting being in trouble at church during bible study periods including that one instructor made him stand in a corner.

Thereafter the father set out a number of assertions made by him about the practices of the Potter’s House Church, including corporal punishment of children, complaints about the pastor and techniques said to be employed in the Potter’s House Church including isolation of the members from non-members, manipulation of time and attention, positive and negative reinforcement, peer group pressure and prohibition of dissent. He also referred to the techniques of sleep deprivation, deprivation of protein and inducement of fear, guilt and emotional dependence. However, he did not depose to any of these asserted practices having been perpetrated on the children, or any of them.

The father also referred to conversations between himself and J, and deposed that J started giving pledges to the Potter’s House Church from his allowance and from his part time job.

He also deposed to J saying ‘“I had a discussion with mum. She told me that it was not true that people in the church refer to you as a bad man. I told her that I heard [AN] (Mrs [W], pastor’s wife) referring to you as an evil man. You know what mum said? [AN] was speaking the truth”’. The father also related a conversation between himself and D in which he asserted D said ‘“Mum has never given anything to the poor and is giving heaps of money all the time [to] the church. She is working her butt off and we even don’t have money to buy tadpoles for our pond which is full of mosquitoes. She is the first person I would like to get out of that stupid place”’.

Ground 1 – ‘Jurisdictional Error’

The father’s first ground deals with the central issue in these appeals, namely whether the trial judge was in error in failing to deal with the injunctive relief sought by the father.

We note that the matter was listed before the trial judge to be dealt with on the principles espoused in Rice and Asplund (supra) on the threshold basis of whether any change of circumstances had occurred which warranted rehearing of parenting issues and/or the injunctive relief. The relevant principles are to be found in the judgment of Evatt CJ as follows, at
78,905 – 78,906:
‘The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material … These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of sec. 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court’s assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard.’

The father did not take issue with the manner of conduct of the hearing by the trial judge per se, but rather that she did not appropriately consider changed circumstances. He also asserted that the trial judge was in error when she said:

‘I have attempted to explain to the husband that the court, because of the constitutional limitations of its jurisdiction, cannot act generally to investigate the church on the basis that this will reveal it is an improper place for children in general, but looks at individual children to consider their welfare in the circumstances where they demonstrate that they must have an actual problem which is impinging on their welfare, rather than a theoretical exposure to risk.’

The father said, referring to the trial judge ‘[s]he does not specifically refer to s116 of the Constitution but it is obvious that’s what she had in mind’.

Section 116 of the Constitution of the Commonwealth of Australia (as contained in the Commonwealth of Australia Constitution Act 1900 (UK)) (‘the Constitution’) is in the following terms:

‘Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’

The Family Court of Australia is a superior court of record created by statute. Section 51 placitum (xxi) of the Constitution gives the Commonwealth Parliament power to make laws with respect to ‘marriage’ and s 51 placitum (xxii) gives the Commonwealth power to legislate in respect of ‘divorce and matrimonial causes’.

Part IV Division 5 of the Act deals with the Court’s jurisdiction and exercise of jurisdiction. Section 31 confers original jurisdiction on the Court, inter alia, in matters arising under the Act. The Court also has jurisdiction in associated matters (s 33), and jurisdiction pursuant to other Commonwealth legislation including the Corporations Act 2001 (Cth) and the Bankruptcy Act 1966 (Cth). In an appropriate case, the Court can also exercise accrued jurisdiction, see ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559, Re Wakim; Ex parte McNally & Ors (1999) 198 CLR 511, Warby and Warby (2002) FLC 93-091, Finlayson v Finlayson and Gillam (2002) FLC 93-121 and Bishop and Bishop (2003) FLC 93-144. Under its implied powers, the Court as a superior court of record may make orders governing its process (CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345). The limits on the jurisdiction of the Court are extensively dealt with in Minister for Immigration and Multicultural and Indigenous Affairs and B and Anor (2004) 219 CLR 365; (2004) FLC 93-174 in particular in the judgment of Gleeson CJ and McHugh J in paragraphs 6 to 23 of their Honours’ joint reasons for judgment.

We discern that the father, wrongly in our view, interprets the trial judge’s passage referred to above as a failure to deal with the relief sought in the father’s application, because to do so would be inimical to the provisions of s 116 of the Constitution. Rather, we interpret her Honour’s reasoning to refer to a lack of jurisdiction to enquire and make findings about the Potter’s House Church and its effect, if any, on members of the community in general, rather than the power of the Court, in the exercise of its jurisdiction under Part VII of the Act, to make orders in respect of a child, which may, in certain factual circumstances, require an examination of a particular religion or organisation as that religion or organisation affects the particular child the subject of the application.

The father correctly identified the effect of s 116 of the Constitution by reference to the discussion by Latham CJ in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116 where his Honour, having noted that ‘s. 116 is an express prohibition of any law which falls within its terms’ said, ‘[a]ccordingly no law can escape the application of s. 116 simply because it is a law which can be justified under ss. 51 or 52, or under some other legislative power. All the legislative powers of the Commonwealth are subject to the condition which s. 116 imposes’ further said ‘[t]he prohibition in s. 116 operates not only to protect the freedom of religion, but also to protect the right of a man to have no religion. No Federal law can impose any religious observance’.

We observe here that the quotation appearing at page 4 of Appeal Book A, whilst purporting to be a quotation of Latham CJ’s reasons in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth (supra), is not in fact contained in such judgment and we are unable to identify the source of the quotation set out by the father.

The effect of a parent’s religious beliefs on the upbringing of his or her child has been raised in many parenting proceedings, and discussions are found in reported decisions in Australia and in overseas jurisdictions, in particular, those of the courts of the United Kingdom. The principles emerging from the cases are conveniently summarised by Dickey in Family Law (Sydney: LawBook Co, 4^th ed, 2002) at 419 as follows:

‘In cases concerning parental responsibility, the courts have long refused to prefer one religion to another or even, in more recent times, to prefer a religious upbringing for a child to a non religious upbringing. What may weigh heavily in the mind of a judge in a case involving a party who is a member of a non conventional religion, however, is the effect on the welfare of a child of the practices of this religion.’

Cases determined after the introduction of the Family Law Reform Act 1995 (Cth) (‘the Reform Act’) are usefully reviewed in the decision of Federal Magistrate Ryan (as she then was) in In theMarriage of H (2003) 198 ALR 383. Those cases disclose no fundamental difference in approach by the Court on the issue after the Reform Act.

In H and H [1998] FamCA 7, the Full Court was dealing with an appeal against orders by a trial judge who had discharged all orders for contact between the father and the children. The parents had each been members of the religion known as ‘the Brethren’. The parties had separated when the father ceased adhering to the religious beliefs of the Brethren. The wife and children remained members of the Brethren. It was submitted on appeal in dealing with what was then an access application, a trial judge ‘“is entitled to look at the religious practices of one of the parties, which are put in issue by the other party as being detrimental to the welfare of the children, and in so doing (the judge) is entitled to take into account these practices as relevant factors together with all other relevant factors in the case in coming to a conclusion regarding the future access (to) a child”’. The Full Court noted it was further submitted that the trial judge was obliged to ‘consider matters and evaluate the views and practices promulgated by the Brethren religion, “not in an endeavour to evaluate whether the views of the wife were less preferable to that of the husband, but so as to determine the effect of these views and practices on the welfare of the children”’. In support of the submission reliance was placed on K v K (1979) FLC 90-680 at 78,634, Morrison and Morrison; Separate Representative (1995) FLC 92-639, Mauger and Mauger (1966) 10 FLR 285; Plows and Plows (1979) FLC 90-607 and Grimshaw and Grimshaw (1981) FLC 91-090.

The Full Court referred to the earlier decision in Firth and Firth; Boyer and Boyer (Interveners) (1988) FLC 91-971 at 77,025 where the Court said:

‘With this general proposition that it is not for a Court to prefer one religion to another we do not disagree. However, in determining questions of custody and access, depending upon, as they do, a determination of what is in the best interests of the child, or, what future proposals put forward by the parties to a suit will best promote the welfare of the child, it is permissible for a Court to examine the tenets and practices of a particular faith for the purpose of deciding these questions. It is in our view a proper exercise of the discretion vested in a judge hearing a custody case to take these factors into account and weigh them in the balance together with all relevant factors in the case. If, when following this approach a court decides that it is detrimental to the welfare of the children for them to be brought up adhering to such practices, this does not constitute a breach of sec. 116 of the Constitution, thereby rendering the orders made in consequence invalid.

The courts have for many years been faced with this question.
…
The Family Court has had cause to consider the question in a number of cases. See Paisio and Paisio (1979) FLC ¶90-659; Plows and Plows (1979) FLC ¶90-712; Grimshaw and Grimshaw (1981) FLC ¶91-090. It is clear from these cases that a trial judge in the course of assessing the competing claims for the custody of the child, is entitled to look at the religious practices of one of the parties, which are put in issue by the other party as being detrimental to the welfare of the children, and in doing so, he is entitled to take into account these practices as relevant factors together with all the other relevant factors in the case in coming to a conclusion regarding the future custody of a child.’

The Full Court went on to note:

‘However what is more important to note is that the Full Court held that a trial Judge is entitled to look at religious practices of one party “which are put in issue by the other party”. The Full Court did not say that the trial Judge must look at such practices and that the Judge must do so even where such practices are not put in issue by the other party.’ (original emphasis).

We are satisfied there is no conflict between the principles set out by us above, and the comments by the trial judge in paragraph 14 of her reasons for judgment. Further, our examination of the father’s affidavit material before the trial judge, which we have canvassed in some detail, does not in our view demonstrate any significant or substantial matter in respect of the children’s wellbeing attributable to their attendance with the mother at the Potter’s House Church which had changed from when Chisholm J dealt with the issue. Significantly, nowhere in the father’s material does he refer at all to E, or to any matter relevant to her welfare. Accordingly, we find no merit in ground 1.

Ground 2 – ‘Miscarriage of Justice by Reason of Fraud’

The particulars given by the father in his submissions to this ground do not appear to us to relate to the ground itself. The particulars refer to the change in the father’s work commitments and issues relating to the mental health of the parents. This latter issue raises the father’s application to adduce by way of fresh evidence copies of psychological tests dated 12 March 1996 of the mother carried out by PTS and a similar report in respect of himself dated 13 March 1996. We find it convenient to deal with this application whilst discussing this ground. We are also satisfied that other matters raised by the father in respect of this ground overlap with ground 4 (‘error of law – inadequate reasons for judgment’).

We have already discussed the contents of the father’s affidavits filed in support of the proceedings. Nowhere in the father’s material does he set out his employment circumstances, availability to care for the children or any evidence relating to the mother’s employment.

We are unable, in the absence of transcript, to ascertain whether the father gave any oral evidence in chief about his employment status and availability to care for the children, or cross examined or sought to cross examine the mother on the issue.

In these circumstances we are not satisfied that the trial judge failed to deal, as a relevant issue, with a changed circumstance by reason of the father’s availability to provide additional care for the children.

The father also raised as a change in circumstances the psychological testing reports. Before us, the father was unable to demonstrate whether he had actually tendered, or sought to tender, before the trial judge the psychological testing reports which he asserted came into his possession after the hearing before Chisholm J. Again, absent transcript, we are unable to ascertain whether the father in fact sought to tender the medical records before the trial judge.

The father now seeks we should admit the reports on the basis that if such reports had been before the trial judge they would have fundamentally altered the outcome of the hearing.

In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. At paragraph 109 McHugh, Gummow and Callinan JJ said:

‘109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.’

Their Honours also said:

‘111. … Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.’

Further, their Honours noted that the Full Court would more readily admit further evidence which was not in dispute, and noted other limitations on such evidence saying:

‘115. … In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.’

The material the father seeks to have admitted on appeal is, in its present form inadmissible, and contentious. Further, its likely relevance, given the dates of the reports, is questionable. In these circumstances, we reject the father’s application to adduce the psychological testing reports.

In his Notice of Appeal under the heading ‘Justification for Orders Regarding the Potters House’ the father says:

‘7.It is no longer possible to impose court orders by which [E]’s mother would be restrained from involving [E] in the Potters House, neither it is [sic] possible to force [E] to disengage herself, by her own will (that has been overborne by the will of the Potters House “god”, as it will be shown by evidence), from that involvement or to restore her relationship with her father, as is not possible to legislate out the drug addiction from a drug addict.
8.As the law cannot legislate out the drug addiction but can legislate out the drug dealing and drug pushing, so also the only way that this Court can help [E] now, if at all, is to stop the Potters House from any further interference in her life.’

We have difficulty reconciling this submission, which is at odds with the orders the father seeks, which include an order restraining the mother from taking E to the Potter’s House Church. We discuss the implications of this submission below.

In Firth and Firth; Boyer and Boyer (Intervener) (supra), the wife’s parents, who were members of the Brethren, intervened in proceedings between the husband and wife. The trial judge had made orders that the application of the husband and the interveners (who all remained members of the Brethren) be dismissed and that the wife have sole guardianship and sole custody of the children of the marriage. The trial judge also ordered that ‘the husband and the interveners and all members of the said Brethren be restrained from attempting to approach the said children for the purpose of speaking to such children or from delivery to them any written material wherever such children might be’. The Full Court held (at 77,030) ‘an injunction against third parties [the Brethren] who were not parties to the proceedings was not justified and was not a proper exercise of His Honour’s discretion in this case’. Similar principles apply in this case.

We have no doubt the father holds a genuine and sincere belief that the practices of the Potter’s House Church in Australia and elsewhere overseas are dishonest, and actually or potentially harmful to its adherents. We accept the father’s beliefs motivate his applications to this Court, and that he now principally wishes to use this Court as a forum to agitate his allegations about the Church. In light of his acknowledgement set out in paragraph 143 above and orally before us, it follows we find no appealable error which we could and should correct, and that Court orders seeking to restrain E’s participation in her religion of choice would be futile. As we have earlier explained, the Court does not have a jurisdiction at large to conduct the type of general enquiry the father seeks, absent such enquiry being integral to a relevant application under Part VII of the Act.

Ground 3 – ‘Denial of Procedural Fairness’

The father submitted ‘I was not given a chance to present my case properly, with her Honour’s frequent and continuous interruptions, under the guise of procedural “assistance” to me’. The father referred to the guidelines in Re F: Litigants in Person Guidelines (2001) FLC 93-072.

This ground can be disposed of shortly. Absent transcript we are unable to consider whether there is any merit to the father’s assertions.

Ground 4 – ‘Error of Law – Inadequate Reasons’

We have considered matters raised by this ground in our earlier discussion.

Ground 5 – ‘Suppression of Evidence’

The father noted that when the proceedings were fixed before the trial judge the matter was listed for one day only and was to commence with the mother’s application for summary dismissal. He asserted that the time allocated was not sufficient for cross examination of two witnesses he had subpoenaed.

We note there was no application to review the decision of Judicial Registrar Johnston fixing the matter before the trial judge to determine the mother’s application for summary dismissal. We also note that the father asserted the trial judge ignored evidence in his case from interstate and overseas witnesses.

We have examined the affidavits filed on behalf of the father and reproduced in the appeal book. They are the affidavit of Ms NC sworn 4 December 2003 who deposed to her experience with the Potter’s House Church in the United States of America. We note Ms NC’s address as disclosed in her affidavit was Massachusetts, USA. The father also filed an affidavit by JH sworn 18 December 2003, and an affidavit of GB sworn 4 December 2003. Each of these affidavits referred to the deponent’s experience of the Potter’s House Church. They contained no evidence in relation to the mother or the children. We are satisfied that the trial judge did have regard to this material, and referred to it at paragraph 14 of her reasons where she said: ‘[t]he material which the husband filed in support of his application makes it clear that he is concerned with the Church generally, not with particular problems which have arisen with his children’.

We find no merit in this ground.

Conclusions

Prima facie, the father has been hampered in the conduct of his appeal by the absence of transcript. However, even if we were satisfied that the transcript demonstrated some error on behalf of the trial judge, we would not see this as an appropriate case for us to re-exercise the discretion or any practical utility in remitting the matter for a retrial in light of the recent consent orders relating to D, and the father’s own submissions that any orders directed to the mother and/or to E who is now aged 16 years would be futile.

APPLICATION TO EXTEND TIME TO APPEAL THE ORDERS OF LE POER TRENCH J MADE 5 SEPTEMBER 2005

On 22 May 2006 the father filed an application in which he sought, inter alia, an extension of time to file an application for leave to appeal against orders made by Le Poer Trench J on 5 September 2005. Le Poer Trench J’s orders were as follows:

‘1.     I discharge the Orders of the Court made on the 21^st of December 2001 so far as they relate to residence and contact orders in respect of the children [J] and [E].
2.      I continue the orders of the 21^st of December 2001 so far as they relate to [D].
3.     I otherwise note the proceedings commenced by the father for contravention have now concluded.
4.      I continue orders 3 and 4 made by me on the 23^rd of August 2005 relating to the removal of the children from Australia until further order of the Court.’

The father had earlier filed a Notice of Appeal in respect of the orders of 5 September 2005 but had withdrawn that appeal. On 20 June 2006 Boland J, sitting as a single judge of the Appeal Division, extended time for the father to file an application for leave to appeal against the orders of Le Poer Trench J to the extent that such leave was necessary. The balance of the father’s Application in a Case was dismissed. Provision was made for the application to proceed by way of written submissions to the Full Court. The father filed his written submissions in accordance with the orders made by Boland J. No submissions were received from the mother who was directed to file and serve written submissions, if any, by 11 August 2006. Further procedural orders were made which required the father to file and serve a draft appeal index on or before 21 July 2006, and in the event of any dispute as to the appeal book index, then either party had liberty on two days notice to apply to the Appeals Registrar who was delegated authority to determine the appeal book index.

The father’s proposed Notice of Appeal sets out seven grounds as follows:

‘GROUND 1: Inadequate reasons for decision. Both orders to which the appeal is directed are the orders that his Honour failed to make, namely, the protection of [E] and [D] from the influence of the Potters House sect, without giving any reasons for his decision.

GROUND 2: Jurisdictional error. In the absence of cogent reasons, I have to speculate: in paragraph 15 of his Judgment of 5 September 2005, his Honour, it appears, suggests that the mother and I should have resolved our problem before we turn to the Court. In other words, his Honour refused to exercise the jurisdiction of the Court.

GROUND 3: Denial of natural justice to [E]. His Honour denied the opportunity to [E]’s child representative to talk to [E] before presenting her case. The child representative saw her client, [E] last time about fur [sic] years earlier.

GROUND 4: Denial of natural justice to [E] and [D]. By not providing the opportunity to me to cross-examine the court counsellor who prepared the Family Report, his Honour denied me an opportunity to present the case properly.

GROUND 5: Error of law. His Honour failed to properly consider sections 60B, 65E and 68F(2) of the Family Law Act 1975 and the case law with regard to the best interests of the children.

GROUND 6: Constitutional issue. In the absence of cogent reasons, I have to speculate: in paragraph 6 of the Family Report a discussion with [J] of “legal and civil rights” is mentioned. [J] explained to me, if he could recall correctly, his Honour’s reference to the “reluctance” of the courts to look at the issues involving religion. It appears then, that the Court’s “reluctance” is due, in my submission, to the misinterpretation of s116 of the Constitution.

GROUND 7: The Judge acted under dictation: Alternative to Ground 6, his Honour acted according to some policy rather than according to law.’

These grounds have been amended in the appeal book by the deletion of D’s name whenever appearing.

The father included in the appeal books an affidavit sworn in support of the application filed 22 May 2006 and what he described as ‘Partial “Transcripts” of 5 September 2005 (Prepared by the Appellant to the best of his abilities). Most relevant parts only included.’

We are unable to discern how the document described as partial transcript came into existence. It does not appear to be an authorised transcript. Accordingly we propose to disregard pages 429 to 430 and 438 to 442 of the appeal book. Pages 507 to 520 of the appeal book are described as ‘Appellant’s Draft Affidavit in support of the above Application’. Thereafter the father set out a number of annexures to the above draft affidavit. He included a document entitled ‘Extract from the book Cults in Our Midst’, attached to the above affidavit. We are unable to discern any relevance in respect of these documents to the appeal and it appears they have been incorrectly included in the appeal book. We propose to disregard them.

Trial judge’s reasons

In his reasons for judgment, Le Poer Trench J noted that the proceedings first came before him on 11 May 2004 when the father sought leave to institute proceedings. He noted the father appeared before him again on 21 September 2004 and the leave application was adjourned until 1 October 2004.

On 22 February 2005 his Honour made orders permitting the father to commence a contravention application. That application was filed by the father on 30 March 2005. The trial judge recorded that on 8 June 2005 he heard the father’s application for contravention of court orders and found the contravention proved. He noted ‘I then discussed what action should be taken by the Court as a consequence of the finding’. His Honour noted that, on the request of the parties, he agreed to meet with the children in the event that they agreed to meet with him.

On 6 July 2005 the trial judge saw J, E and D in the presence of Ms F, then Director of Court Mediation (now Manager Child Dispute Services). Ms F provided a report dated 14 July 2005 of the interview. The report was released and the matter came back before the Court. On that occasion the trial judge noted:

‘8 … I did make other orders, including the appointment of a Child Representative for all the children, which were necessary as a result of matters stated by the father in an attachment to his affidavit filed on the 1^st August 2005. In short [the father] said he proposed to kidnap his children and keep them away long enough to cause [E] to recover from what he sees as the effects of brainwashing by the members of the Potters House Church.’

The trial judge then recorded that Ms WA, the Children’s Representative ‘had an opportunity to speak to each of [J], [E] and [D]’. His Honour noted having had discussions with the parties that:

‘11 I asked them to consider whether, given the age of [J] and [E], the current orders in respect of their residence and contact should be discharged and that each of the parties should make their own arrangements with those children in terms of spending time with them.’

The trial judge then recorded the father had raised the issue of D’s residence with him, and he noted that such an application was not before him, and that he was not prepared to entertain such an application ‘as part of these proceedings’.

His Honour then turned to the penalties he could impose under s 70NG of the Act and noted the mother had not, at any other time, been found to have contravened Court orders.

Having noted the parties had failed to recognise the effect of their conflict on the children, the trial judge said:

‘18 As a consequence, I propose to make the orders which would see the current orders in respect to [J] and [E] discharged and the current order in respect of [D] to continue. This proposal is supported by the children’s representative. The effect of such a step will be to ensure there will not be further applications for contravention of court orders so far as it relates to these two children.’

The trial judge then made the orders the subject of the appeal.

The parties’ submissions

We have already noted no submissions have been filed by the mother in respect of this appeal.

We have already set out the proposed orders contained in the father’s submissions in respect of this appeal in paragraph 5 of our reasons.

The father’s submissions asserted:

·    a failure by the trial judge to give adequate reasons (to deal with his application for leave to file an application to protect the children from the Potter’s House Church);
·    an asserted jurisdictional error by the trial judge in not assuming jurisdiction to deal with the father’s allegations about the Potter’s House Church adversely influencing the children’s welfare;
·    a denial of natural justice to E by failing to make provision for her to be interviewed by the child representative; and
· a failure to properly consider ss 60B, 65E and 68F(2) of the Act as it then was.

Discussion

Ground 1 of the father’s grounds of appeal asserted inadequate reasons for the trial judge’s decision, and further asserted that his Honour failed to make orders, namely the protection of E from the influence of the ‘Potters House sect’, without giving any reasons for his decision.

The application which was before his Honour was the father’s contravention application filed on 8 June 2005. That application was brought after the father filed an application on 6 September 2004 in which he sought the following orders:

‘1. That a *conditional leave be granted to appraoch [sic] a judge of the Family Court in order to lodge a Form 18 Application – Contravention of Contact Orders [*Refer to the attached Affidavit for the conditions].
2.That a *conditional leave be granted to appraoch [sic] a judge of the Family Court in order to lodge a Form 2 Application – Protection of Children from Psychological Abuse [*Refer to the attached Affidavit for the conditions].’

The father filed an affidavit in support of his application for leave on 6 September 2004.

In his affidavit the father deposed:

‘4. One of the issues is that my daughter, [E], has undergone the personality change due to the psychological pressure that she has suffered as a result of her involvement with a religious sect, the Potters House.’

The father further deposed:

‘7. I believe that I have a legitimate cause to commence another proceeding since the Respondent, mother, is in a clear contravention of the contact orders currently in force. She has started taking [E] to the Potters House meetings on Fridays when the [sic] [E] is supposed to be with me, in spite of my objections.’

It is not clear from the appeal books when orders were made by the trial judge dealing with the application filed on 6 September 2004. It appears from his Honour’s reasons of 5 September 2005 that the trial judge made an order on 20 October 2004, although prior to service of the application on the mother orders were made on 22 February 2005 ‘permitting the father to continue with his application only on the basis that it was confined to a complaint of breach of order in the form stipulated in the order of that day’. We note that the father has not sought to extend time to appeal against the order of 22 February 2005 limiting any application brought by him to a contravention application as sought in paragraph 1 of the orders sought on 6 September 2004.

At the time of the hearing before the trial judge s 70NG of the Act, prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), provided as follows:
‘70NG Powers of court
(1)     If this Subdivision applies, the court may do any or all of the following:
(a) make an order in respect of the person who committed the current contravention, or (subject to subsection (2)) in respect of both that person and another specified person, as follows:
(i)      directing the person or each person to attend before a provider so that the provider can make an initial assessment as to the suitability of the person concerned to attend a program;
(ii)     if a person so attending before a provider is assessed by the provider to be suitable to attend a program or a part of a program and the provider nominates a particular program for the person to attend—directing the person to attend that program or that part of that program;
(b) make a further parenting order that compensates for contact or residence forgone as a result of the current contravention;
(ba) make any other order varying the order so contravened;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order.
(1A) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a) whether the primary order was made by consent;
(b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c) the length of the period between the making of the primary order and the occurrence of the current contravention;
(d) any other matters that the court thinks relevant.
(2)     The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3)     If the court makes an order under paragraph (1)(a) that a person is to attend before a provider for assessment, the court must cause the provider to be notified of the making of the order.’
It is important to note that the proceedings before the trial judge were contravention proceedings and not, as the father appears to assume, proceedings instituted by him for parenting orders or injunctive relief under s 68B of the Act (as it then was). Having regard to the application before the trial judge, we find no merit in grounds 1 and 2 of the father’s grounds of appeal.

Grounds 3 and 4 of the father’s grounds of appeal are directed to an assertion of denial of natural justice to E. It is asserted the breach of the rules of natural justice occurred:

· by the trial judge denying an opportunity to the children’s representative to speak to E; and
· by not providing the father the opportunity to cross examine the court counsellor who prepared the family report.

We find it relevant to briefly set out the history which led to a family report being prepared in the course of contravention proceedings.

The father’s contravention application was heard by the trial judge on 8 June 2005. The mother was found to have contravened the Court’s orders without reasonable excuse.

In these circumstances, the trial judge was bound to consider, in the exercise of his discretion, the making of appropriate orders pursuant to s 70NG of the Act. Pursuant to that provision, one of the options available to the trial judge was to make an order varying the order contravened
(s 70NG(1)(ba)). His Honour also had power to adjourn the proceedings to allow either or both of the parties to apply for further parenting orders under the Act that ‘discharges, varies or suspends the primary order or revives some or all of an earlier parenting order’.

Prior to exercising his discretion, the trial judge, with the consent of the parties, met with the children. The trial judge saw the children in the presence of Ms F.

Following release of Ms F’s report, the matter was listed before the trial judge on 23 August 2005. Due to an administrative error the mother was not advised of that adjourned date and only the father appeared before the trial judge.

In his reasons for judgment delivered that day, the trial judge noted that the father had filed affidavits on 1 August and 15 August 2005. The trial judge set out a summary of some of the material contained in the father’s affidavit filed 1 August 2005 as follows:

‘4 In this document [the father] in a very candid and succinct way has set out the agony for him of involvement in this Court and the frustrated process, as he sees it, of saving his children from the abuse which he understands they have suffered as a result of their involvement in the Potters House Church. In this document he points out that he has contemplated suicide on more than one occasion. He has sought and obtained help from a psychiatrist. At the moment he is not in a position to re-visit that psychiatrist because he does not have the funds to be able to do so. I have canvassed with him today other alternatives that might be available to him, including attending a public hospital and seeking a session with a psychiatrist.
5 In paragraph 9 of this affidavit [the father] says he proposes that he will kidnap the children and keep them away from the Potters House Church for long enough to cause [E]’s recovery and then come back and go to gaol if need be.’

The trial judge then, on his own motion and pending further order, made an order that the children not be removed from Australia and their names placed on the passport watchlist to prevent any potential kidnap of the children and their removal overseas. He also appointed a children’s representative for the children.

When the matter came back before the trial judge on 5 September 2005 his Honour determined, having regard to the provisions of s 70NG to discharge the orders for residence and contact in respect of J and E. At the time of the discharge of the orders E was aged 15 years.

It is clear from the trial judge’s reasons for judgment that no leave was granted to the father to commence proceedings in relation to the issue of E or D’s residence or for injunctive relief. In circumstances where E’s views were directly made known to the trial judge, we discern no breach of the rules of natural justice to E.

Ground 5 of the father’s appeal asserted that the trial judge failed to properly consider ss 60B, 65E and 68F(2) of the Act as well as case law in respect of the best interests of children.

As we have already set out, the application before the trial judge was not an application for parenting orders, but was an application that the mother be dealt with for contravention of contact orders.

We accept, in the course of considering appropriate orders to be made under s 70NG, the trial judge discharged the orders made on 21 December 2001 so far as they related to residence and contact in respect of J and E. Whilst we do not have the benefit of Ms F’s report, we are satisfied from the trial judge’s reasons for judgment he clearly considered the wishes of each of the children directly conveyed to him. Further, the trial judge had regard to the ongoing adverse effect of the litigation on the children, and found it would be in their best interests to make orders which would avoid further contravention applications which applications he found would be detrimental to the children. In these circumstances, we reject the father’s document which is not contained in an application but is entitled ‘Interrogatories’ (being questions addressed to Ms F relevant to her reports) as having any relevance to this appeal.

Given the age of each of J and E at the date of the hearing before the trial judge, and their views expressed to the trial judge about ongoing litigation between the parties, his Honour’s reasoning in discharging all parenting orders in respect of these young persons is readily discernable. Whilst the trial judge did not refer to specific factors under s 68F(2) in the circumstances of this case we do not discern it was necessary for him to do so (see A v J (1995) FLC 92-619 at 82,230 - 82,233; Bennett and Bennett (1991) FLC 92-191 at 78,267 and CDJ v VAJ (supra) at 236 – 237; 85,468. We are able to readily understand his Honour’s reasoning. Accordingly we find no merit in ground 5.

Grounds 6 and 7 of the father’s grounds of appeal do not demonstrate comprehensible or intelligible grounds of appeal.

Was leave required to appeal the orders of 5 September 2005?

We have noted that the father filed an application for leave to appeal in respect of the orders made on 5 September 2005.
When this matter came before Boland J on 20 June 2006, her Honour noted that the orders the subject of the appeal appeared to be ones which were decrees relating to a child welfare matter as defined in reg 15A of the Family Law Regulations 1984. A child welfare matter is defined as follows:
‘…
(2) In this regulation:
child welfare matter means a matter relating to:
(a) the person or persons with whom a child is to live; or
(b) the person or persons with whom the child is to spend time or communicate; or
(c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.’

Conclusions

As the primary matter before the trial judge was not a parenting application, but an application that the mother be dealt with for contravention of orders, and Order 4 of the orders was made pending further order it appears that leave was necessary for the father to appeal some of the trial judge’s orders.
The principles to be applied in considering an application for leave to appeal are well known. An applicant seeking leave to appeal from interlocutory orders must demonstrate that there has been an error of principle and/or a substantial injustice will be caused to one of the parties if leave is not granted (Rutherford and Rutherford (1991) FLC 92-255) or that the issue is one of general importance: Aarons, GWP & Co v Knowles,CE (1995) FLC 92-627. See also Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.
We do not perceive the father has demonstrated any error of law on the part of the trial judge, nor would there be any substantial injustice caused if leave was not granted. Accordingly we refuse leave to appeal the orders made by Le Poer Trench J on 5 September 2005.

SECTION 118 AND COSTS APPEAL

Grounds of appeal

The father relies on his Notice of Appeal filed 12 December 2005. In part C he makes it clear he is appealing orders made by Lawrie J on 20 February 2004 (Orders number 1 and 2). In part D of his Notice of Appeal he purports to set out grounds of appeal:

‘1. Refer to the attached document titled:
“Grounds of Appeal Lawrie J Orders of 20^th February 2003 [sic]”’.

The annexed grounds of appeal refer to the orders of Lawrie J of 4 February 2003 (in fact orders of 4 February 2004). The father sets out no grounds in relation to the orders made pursuant to s 118 of the Act, nor does he refer to her Honour’s orders in his Outline of Argument. The mother’s submissions do not address this appeal.

In the absence of any grounds or submissions relating to grounds of appeal, we are unable to discern the nature of the challenge to her Honour’s orders and the appeal must fail.

EXTENSION OF TIME TO APPEAL FINN J’S COSTS ORDERS

In his Application in a Case filed 12 December 2005 the father seeks ‘[t]hat the order No 4 of the orders of the Hon Justice Finn, of 22nd September 2005 be set aside’. No appeal was filed by the father against the orders of Finn J in the time provided in the rules.

On the hearing of this appeal orders were made that the father’s application, which is clearly an application for extension of time in which to appeal, should be heard and determined with the other appeals.

The father relies on an affidavit in support of his application sworn on 12 December 2005. In that affidavit he referred to his application to extend time to appeal the orders of Chisholm J of 11 January 2001 which had been rejected.

The father submitted that the order made by Finn J should be set aside because ‘I consider it manifestly unjust and absurd. Unjust because it is caused by an application dealing with the matters of the proceedings before Chisholm J, that are full of irregularities. It is not for either party to pay those costs. Absurd because I am simply not in a position to pay any costs within tree [sic] months. Three years would be more appropriate, if at all’ (original emphasis).

Finn J’s reasons

As we have already noted, Finn J dealt with an application by the father for an extension of time to appeal against both the orders made by Chisholm J and the orders made by Steele J. Her Honour comprehensively at paragraphs 42 to 78 of her reasons for judgment carefully considered each of the father’s proposed grounds of appeal and found those grounds to be without merit.

Her Honour then considered other matters relevant to the exercise of discretion to extend time to appeal including the extent of the delay, the reasonableness of any explanation offered for it, any hardship or prejudice to the mother which could not be compensated for by an order for costs, and the need for finality to litigation.

At paragraph 107 of her Honour’s reasons she dealt with the costs of the proceedings before her. Her Honour recorded that the solicitor for the mother made an application for costs in the sum of $3,531.00 in the event the applications were unsuccessful. Her Honour noted ‘[t]he father opposed that application on the basis that he would not be in a financial position to meet such an order’ (paragraph 108).

Finn J, in paragraph 109 of her reasons, said:

‘109. In seeking to be granted an extension of time in which to appeal the orders of Chisholm J and Steele J, the father has sought what can be termed “an indulgence” from the Court. It is not unusual in such circumstances for the applicant for such an indulgence to be required to pay the costs of the respondent even if the applicant is totally successful in his or her application. This is because in cases such as the present, it is clearly not the mother’s fault that the father failed to appeal within time. I was told that the mother is not in receipt of legal aid and even though she is in part-time employment, her financial circumstances are clearly modest, as also are those of the father.’

The father filed a further affidavit sworn 27 January 2006. In that affidavit the father refers to his application filed 12 December 2005 in which he sought that the mother make disclosure of the source of payment of her legal costs in all of the proceedings before the Court.

The father then referred to an offer made to the mother’s solicitor to withdraw the present application and to pay the costs ordered within two years time. Later in the affidavit the father acknowledged his agreement with Finn J’s findings that it was not the mother’s fault he did not appeal the orders of Chisholm J within time.

The principles to be applied in respect of an application to extend time are clear. These principles have been referred to in a number of cases, including McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (1990) 93 ALR 479 at 480 where McHugh J said:
‘The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion”.’

Proposed grounds of appeal

The father sets out no proposed grounds of appeal.

Parties’ written and oral submissions

The mother’s solicitor opposed the granting of an extension of time to appeal Finn J’s orders. He submitted that the father was aware of the time limits and chose not to act. He further raised a jurisdiction point that ‘[a] decision and Order of Finn J is an Order of the Full Court from which recourse cannot be had to the same Court but an external appeal is required. The application lacks utility’.

The application before Finn J was an application brought under s 94(2D)(e) of the Act.

Section 94(2F) provides ‘[n]o appeal lies under this section from an order or decision made under subsection (2B) or (2D)’.
We accept that if the costs order is an order made under s 94(2D) then no appeal lies to this Court and the father’s application must fail. See W and B [2002] FamCA 109 where Lindenmayer J said:
‘14. It may seem anomalous that, by virtue of s.94(2F), no appeal under s.94 (that is to this Court) is available to a litigant who is dissatisfied with the determination by a single Judge of an application under s.94(2D)(a) to extend the time for the institution of an appeal, but that an appeal to this Court is available against the determination by a single Judge of an application under Order 32A rule 3(b) of the Family Law Rules for an extension of time to apply for leave to appeal. But, in my opinion, s.94(2F), being a provision which is restrictive by nature and takes away what might be regarded as the usual right of appeal to this Court from a decision of a single Judge, should be strictly interpreted as applying only to the subsections which are specifically referred to in it.’ (original emphasis).
The power to award costs under the Act pursuant to s 117 is not in doubt. A judge has a wide discretion in making an order for costs (see Penfold v Penfold (1980) 144 CLR 311; (1980) FLC 90-800). It appears to us that although the application before Finn J was one brought under s 94(2D)(e) the order for costs was ancillary to that application, and the head of power for making such order was not s 94(2D) but s 117 of the Act.

In the circumstances, we are satisfied that, subject to an extension of time in which to appeal, an appeal does lie to the Full Court in respect of a costs order made whilst dealing with an application of a procedural nature pursuant to s 94(2D).

Turning to consider the criteria applicable to the granting of leave we note that the father provides no explanation for his delay in filing an appeal within the time provided by the rules. Further, he does not provide any proposed grounds of appeal which would enable us to assess the merits of such grounds. The material contained in his two affidavits in support of the application does not reveal any substantial injustice to the father which would be caused by a failure to extend time in which to appeal.

It is clear, by the father’s own admission, he has not paid costs orders made against him. In these circumstances any prejudice to the mother could not be effectively remedied by an order for costs. In these circumstances we do not find it appropriate, in the exercise of our discretion, to extend the time in which the father can file an appeal against the costs orders made by Finn J on 22 September 2005.

In these circumstances, we also do not find it appropriate to make the orders sought in the father’s Application in a Case filed 12 December 2005, and we dismiss that application.

COSTS OF THE APPEAL

At the conclusion of the hearing we sought submissions from the parties in respect of costs of these appeals and applications. The father sought in the event that the appeals succeeded a certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth). In the event he was unsuccessful he conceded it was appropriate that an order should be made that he pay the mother’s costs. However, he sought that any requirement for payment should be delayed for two years. He said at that time he would pay any costs order as well as his HECS loan which he had from the Government.

The mother’s solicitor tendered a letter dated 19 December 2005 in support of her application for costs. In that letter the mother proposed that the period for compliance with Finn J’s order be extended from a period of three months from the date of order, until the conclusion of the appeals. The letter further put the father on notice in the event that he did not include transcript in the appeal books, and this failure led to the dismissal of the appeals, the mother would seek costs of the appeals.

We have regard to relevant matters under s 117. The father is currently unemployed, but owns real estate in Sydney in which he lives. There is no up to date information before us about the mother’s financial circumstances. Following the orders of Chisholm J the parties’ matrimonial home was sold and each party purchased other property. The mother appears to have been engaged in undertaking some employment as a domestic cleaner. We do not find any significant difference between the parties’ financial circumstances.

The father has been entirely unsuccessful in the appeals and his applications. The proceedings have been lengthened by the father failing to file applications and/or appeals in the time provided in the rules, and applying to extend time in which to appeal orders of Le Poer Trench J having previously withdrawn such appeal. Although the mother did not respond to the father’s application in respect of the orders of Le Poer Trench J she incurred legal costs in respect of procedural hearings and was represented at the hearing of the appeals.

We have regard to the contents of the letter of 19 December 2005 both as to the proposal contained therein to extend time to pay costs ordered, which was not accepted by the father, and the notice given to the father that the mother would seek costs in the event he failed to provide transcript, and the appeals were dismissed because of the lack of transcript.

We are satisfied that the matters discussed above constitute circumstances which require departure from s 117(1), and that the father should pay the mother’s costs.

Notwithstanding the father’s submission that we should extend time for payment of costs, we find it is appropriate that he should be ordered to pay the mother’s costs of and incidental to the appeals and applications, and in the event the parties are unable to reach agreement, that such costs should be assessed pursuant to Chapter 19 of the rules.

I certify that the preceding two hundred and thirty (230) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 28 September 2006