PACE & PACE
[2014] FamCAFC 121
FAMILY COURT OF AUSTRALIA
| PACE & PACE | [2014] FamCAFC 121 |
FAMILY LAW – APPEAL – CHILDREN – Family violence – Whether the trial judge erred in making an order for equal shared parental responsibility – Whether equal shared parental responsibility was inapplicable because of domestic violence – Where no submission was made to the trial judge about equal shared parental responsibility – Where equal shared parental responsibility is not inapplicable. FAMILY LAW – APPEAL – EVIDENCE – Whether the trial judge placed too much weight on the father’s evidence – Where the mother raised questions about the father’s bona fides in a property transaction – Where the issue before the primary judge related to the mother’s evidence – Where there was no error. |
| Family Law Act 1975 (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Ms Pace |
| RESPONDENT: | Mr Pace |
| FILE NUMBER: | BRC | 859 | of | 2013 |
| APPEAL NUMBER: | NA | 76 | of | 2013 |
| DATE DELIVERED: | 11 July 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 9 April 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 November 2013 |
| LOWER COURT MNC: | [2013] FCCA 2325 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Merkin |
| SOLICITOR FOR THE APPELLANT: | Direct brief |
| COUNSEL FOR THE RESPONDENT: | Mr Andrew |
| SOLICITOR FOR THE RESPONDENT: | McNamara & Associates Solicitors |
Orders
The appeal against the orders of Judge Jarrett made on 11 November 2013 be dismissed.
The respondent file and serve written submissions on the question of the costs of the appeal within 21 days of the delivery of these reasons and the appellant file and serve a response to those submissions within a further 21 days after receipt of the respondent’s submissions.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pace & Pace has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 37 of 2013
File Number: BRC 859 of 2013
| Ms Pace |
Appellant
And
| Mr Pace |
Respondent
REASONS FOR JUDGMENT
In a notice of appeal filed 6 December 2013 and amended on 14 March 2014 Ms Pace (“the mother”) appeals against orders made by Judge Jarrett on 11 November 2013. His Honour’s orders were made after determining a contravention application brought by Mr Pace (“the father”) in which he asserted that the mother had, without reasonable excuse, contravened an order of the court by unilaterally removing their children from their schools and by changing their place of residence. His Honour, found the contravention of the order established and ordered pursuant to s 70NEB of the Family Law Act 1975 (Cth) that the mother be subject to a bond to be of good behaviour for a period of 12 months, a condition of which was to comply fully with all orders in force in respect of the children. The judge also ordered that from the property settlement the mother pay the father’s costs of the contravention proceedings.
In order to give some context to the grounds of appeal and our consideration of them, it is helpful to first consider some background. We understand the following matters to be uncontentious
Background
The parties were married in 1999 and finally separated in May 2012. They have two daughters aged 13 and 11. There are property and parenting proceedings pending in the Federal Circuit Court.
On the 27 February 2013 a Temporary Protection Order in favour of the mother and children was made at the Magistrates Court of Queensland in Brisbane. The application named the father as the respondent.
On 11 June 2013 the mother applied for a Protection Order for herself and the children, naming the father as the respondent. The application was opposed by the father. After hearing the matter, on 16 July 2013 the Magistrate granted a two year Protection Order, finding that three of the incidents on which the application was based had been proved and that they constituted domestic violence.
On 15 May 2013 interim orders were made by consent of the parties which relevantly provided that the children live with the mother (order 1) and that the parents have equal shared parental responsibility in relation to the children (order 2). While the orders did not make provision for the children to spend time in the company of the father, the orders provided for the children to initiate contact with the father if they wished and for the father to send cards, letters and gifts to the children.
On 12 August 2013 the mother applied to the Federal Circuit Court to have the consent orders of 15 May 2013 discharged. This application was refused by Judge Jarrett.
On 18 September 2013 the mother made an application to the Magistrates Court of Queensland to vary the Protection Order. A new Temporary Protection Order was issued on that day which then became a permanent Protection Order on 16 October 2013. The order named the mother and children and also the maternal grandmother and the maternal aunt as people protected by the order. It prohibited the father from using social networking or other internet tools to communicate with the mother or the children, approaching the mother or the children and having personal weapons. The order was expressed to remain in force until 16 October 2015.
On 10 October 2013 the father filed a contravention application alleging that the mother unilaterally removed the children from their school and changed their place of residence.
The Contravention
It was uncontentious that on 8 August 2013 the mother left the home where she and the children had been living and moved with them to a domestic violence refuge in Brisbane, approximately 90 kilometres away. The children did not attend the schools in which they had been enrolled from that date. The father said that on 28 August 2013 he was informed by the older child’s school that her enrolment there had been terminated and that she had not attended school for the previous two weeks. After that time he said that he became aware that the younger child had also been removed from the school she had been attending. It was uncontentious that the mother had not given the father any notice of her intended move nor of the removal of the children from the schools they had attended.
On 10 October 2013, the father brought a Contravention application alleging that the mother had, without reasonable excuse breached the order for equal shared parental responsibility by unilaterally removing the children from school and by changing their place of residence.
The mother did not dispute the contravention but contended that she breached the order because there had been a long history of domestic violence in her relationship with the father and that even though she had the benefit of a Protection order, certain events occurred which caused her and the children to fear that the father would breach the orders and approach the children at their schools and remove them.
The primary judge did not accept that the mother’s evidence provided a reasonable excuse for her contravention of the orders and found the contravention proved.
It was in relation to this finding that the orders appealed from arise.
Reasons of the Primary judge
As there was no issue before his Honour about whether the mother had contravened the orders; the matter considered by primary judge at [6] was whether there was a reasonable excuse for the mother’s actions.
His Honour said at [8]:
8. The mother’s case is a difficult one to understand. She says that there is a long history of domestic violence between these parties. The compendious phrases “domestic violence” or “family violence” has been used throughout the course of the submissions for the mother and throughout the mother’s affidavit material. There is little by way of particularity. But even if one was to accept her generalised assertions about the nature of the relationship between she and the father prior to the orders of 15 May 2013 one thing is clear and that is that whatever occurred before 15 May 2013 during the course of the relationship of these parties the mother felt that she was able to agree to an order for equal shared parental responsibility.
At [10] and [11], the primary judge referred to the events which the mother said justified her contravention of the order for equal shared parental responsibility. He said:
10. What has occurred since then to justify her failure to comply with orders? The mother says three matters. The first is that during a hearing that she says in her affidavit occurred on 16 July of this year, the father made a statement to a magistrate who was hearing an application under the State family violence legislation which went beyond the mere inquiry of the magistrate and which included words which the mother contends were said in a way which was fashioned to intimidate her. The second matter is that she says that there was an occasion where there was an unknown motor vehicle with a sign “…” on the side of it – a mining company vehicle apparently – that was seen to be driving slowly past her residence. The third matter is a receipt, by the children in this case, of letters from the father with an address near [Town U] which the mother says caused the children to be scared that their father might come to their school and get them.
11. Lest it be said that I have overlooked it, there is also a statement made to the mother by the deputy principal of one of the schools at which the children attended, to the effect that if the father chose to turn up at the school and to contact the child who was at that school, there was nothing that the principal could do about it because all of the staff at the school were female.
His Honour considered each of these events and did not accept the mother’s contention that the events were such that her actions were necessary to protect the children. His Honour found that there was no evidence that the father had attempted to contact the children at school or had attempted to act outside the ambit of the court’s orders [17] to [19]. He thus found at [22] that the mother had not established a reasonable excuse for her contravention of the orders.
The appeal
Nine grounds of appeal are raised in the amended notice of appeal although grounds 3, 4 and 7 were abandoned during the appeal hearing. Further, although ground 5 was not abandoned, counsel for the mother conceded that it was erroneously based. It will be convenient then to deal with Ground 5 first to dispose of it.
Ground 5 – His Honour erred in making orders that the Appellant mother the name [sic] and address of the schools the children were attending and their residential address evidence for the or the appellant [sic] and the children were residing in a Domestic Violence Shelter.
The basis for this ground of appeal is misconceived. It asserts that in the matter under appeal, his Honour ordered the mother to reveal the address of the refuge at which she was living. His Honour made no such order. The order was as follows:
(3) The mother forthwith, and in any event before she leaves the Court precinct, disclose to the father:
(a) the name and address of each of the schools attended by the children; and
(b) the residential address of the children.
The reasons given by his Honour in relation to this order are as follows (at [42]):
The mother should forthwith disclose to the father and, in any event, before she leaves this Court building this afternoon, the name and address of each of the schools attended by the children. She should also disclose the residential address of the children. The reasons for those orders are these. There is presently in place an order for equal shared parental responsibility. These children are entitled to know that their parents know where they are.
It was somewhat surprising then that it was not until this ground was argued in the appeal that counsel for the mother was prepared to concede that the ground was unsupportable. In addition, counsel conceded that the basis for the argument was “erroneous”.
This ground must fail.
Ground 1 – His Honour erred in finding no reasonable excuse where it was against the preponderance of the evidence
It was argued that the primary judge in finding, as he did at [8] and at [10] that the mother provided little detail in relation to the history of domestic violence and that the events on which she relied did not provide a reasonable excuse for contravening the order were against the weight of the evidence.
The weight or importance attached to evidence is a matter for the primary judge and the bar to successful challenge to such a finding placed very high, the appeal court having to be “well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion” (See Gronow v Gronow (1979) 144 CLR 513). Although it was contended in the written submissions on behalf of the mother that his Honour’s conclusions were “unfounded” nothing put to us, nor anything in the evidence to which we were referred is persuasive of error. His Honour’s findings were open to him on the evidence.
This ground has not been made out.
Ground 2 – His Honour erred in not making an order for Sole Parental Responsibility where Shared Parental Responsibility is not applicable in the context of the preponderance of the evidence
It was argued in support of this ground that his Honour ought, as part of the determination of the contravention application, made an order for sole parental responsibility in the mother’s favour. It was argued that in her response to the father’s application for contravention, the mother sought an order for sole parental responsibility for the children, and thus his Honour ought to have made that order and erred in not doing so.
The written submissions on behalf of the mother contended the mother’s assertions of domestic violence in the past and the events on which she relied to provide a reasonable excuse ought to have caused his Honour to regard the equal shared parental responsibility order as being “inapplicable” (Written submissions page 4).
Of course, the foundation of this argument and, it seems, the ground of appeal is an acceptance of the correctness of the argument advanced in relation to ground 1 which we have found not made out.
Further, it became apparent during argument on the appeal that no submission to this effect was made to his Honour in the hearing but it was asserted that he nonetheless ought to have considered it. We are not persuaded that his Honour was required to, in effect, pick through the mother’s response and make orders for which she herself, it seems did not contend on the hearing.
It is also to be observed that the mother had earlier sought a discharge of the parenting orders of 15 May 2013 from his Honour and that application was refused on 12 August 2013.
For the reasons we have outlined, this ground of appeal cannot be established.
Ground 6 – His Honour erred in stating loudly comments to the effect that impugned the Appellant’s bona fides in her occupation at a domestic violence refuge and should not have been taking up resources more necessary for other women and children [sic]
This ground of appeal relates to comments made by his Honour in response to the submission of counsel for the mother that she was living in a refuge. The issue arose after his Honour found that the mother had, without reasonable excuse, contravened the order and was discussing with the mother’s counsel when the mother would return the children to the marital home and to their schools. Counsel submitted that the mother could not return the children to the home and their schools because she was afraid of the father and because of her financial circumstances.
He said:
His Honour: You see, that’s what troubles me about this case. There are families out there – there are woman out there who are the subject of the most horrific domestic violence and they cannot get emergency accommodation, yet your client, on the flimsiest of cases, is taking up that emergency accommodation, a refuge space for families, woman and children who desperately need it. That’s what troubles me the most about this case, because I’ve seen the evidence that your client has chosen to put before me and it is nothing. It is at this end of the scale, with this end being zero and this end being 10. It’s outrageous that she should be taking up that accommodation when there are plenty of other women and children who are the subject, as I say, of the most horrific domestic violence and need the accommodation. Now, is your client prepared to enter into a bond?
(Transcript 11 November 2013 page 57 line 40 to page 58 line)
It was argued that his Honour’s comments demonstrate bias and that his comments impugned the mother’s bona fides. The balance of the submission contains irrelevant comment of a general nature.
Whilst the choice of words of the judge may be regarded as harsh and unfortunate, it must follow from his Honour’s earlier findings in the case, namely that the mother had not established a reasonable excuse based on her concerns about the conduct of the father, that his comments were squarely based on the evidence and his conclusions about it. The challenge to those findings not having been established, we proceed to this ground on the basis that his Honour was entitled to find as he did.
It was argued that his Honour’s comment impugned the mother’s “bona fides” in that it called her credit into question. A reading of his Honour’s reasons establishes that his Honour accepted the facts that formed the foundation of the mother’s expressed concerns. However, he found that they did not amount to a reasonable excuse for breaching the order. Thus we do not accept that his Honour’s comments impugned the mother’s credibility.
In oral submissions, it was further contended that his Honour’s comments gave rise to an apprehension of bias. Consistently with the confused and confusing submissions made on behalf of the mother in this appeal, it was not indicated how or indeed in what way it was suggested his Honour’s comments gave rise to this apprehension. In any event, counsel for the mother conceded that no application was made to his Honour that he recuse himself. It is well settled that a complaint of bias is not legitimately made if raised for the first time on appeal. (See Vakauta v Kelly (1989) 167 CLR 568)
This ground is not made out.
Ground 8 - His Honour erred in not relying on the evidence of the Applicant where the Applicant’s credit was marred by deliberate and mendacious information to the Court regarding the order for the sale of the vacant land where the Applicant had already unilaterally sold one block and did not inform the Court prior to the order made; [sic]
It is difficult to understand the thrust of the ground and little assistance is gleaned from the written submission in support of it.
It seems that what this ground asserts is that his Honour erred in placing weight or perhaps too much weight on the husband’s evidence in determining the issue before him when, it was asserted, the husband had sold a part of a block of land at a time before orders were made that he sell it and, it was said, the husband did not inform the court that part had already been sold.
On 12 August 2013 the primary judge made consent orders which, inter alia, ordered:
12. The property (“vacant land”) situated at [Town U], be forthwith sold and the sale proceeds be held in the husband’s solicitors Trust Account, only to be distributed as per Court order or as agreed between the parties in writing.
In her affidavit in response in the contravention proceedings, under the heading “Other Issues” the mother noted that she was informed on 22 August 2013 that the vacant land had been sold in accordance with the orders.
The issue of the sale of the land was not the subject of cross-examination of the father by the mother’s counsel in the case.
After his Honour had found the contravention proved and had imposed the sentence on the mother, he turned to other matters then in issue between the parties, including the payment of a mortgage. Counsel for the mother said to his Honour:
MS MERKIN: Furthermore, the father also came to court on 10 August and consented to a number of orders on that day including an order that the land at [Town U] should be sold forthwith. In fact, your Honour, at paragraph 36 of the respondent mother’s affidavit, and attached at SCP15, what in fact has occurred was that one of the lots of that [U] property has already been sold.
(Transcript 11 November 2013)
Counsel then submitted that the documents show that at the time the father consented to the orders for sale of the land, he had a buyer for one of the parcels of land referred to but did not disclose the existence of the buyer to the court. This supported a submission that followed which was that the father “…is in no position to stand without clean hands before this court…”. (Transcript 11 November 2013)
Although not articulated in any coherent way, we understand this evidence to support the submission made in oral argument that in light of the challenge to the husband’s credit based on agreement to sell the parcel of land which was not disclosed, his Honour placed too much weight on the husband’s evidence in determining the issues before him.
It is important to note that counsel for the mother did not address the primary judge on the father’s credibility in any context relevant to the issue and which forms the subject matter of the appeal. Indeed, the discussion of the father’s credibility, assuming that the rather Delphic comment about “clean hands” was a submission on his credibility, came after the primary judge had determined the matter before him.
This submission, in small part, illustrates the misconceived and unhelpful way in which the appeal was framed and argued by counsel for the mother.
It seems that his Honour also had difficulty with the way the mother’s case was put by Ms Merkin (at [53]):
I need to immediately recognise, however, that the way in which the wife’s case was put accorded neither with the law nor with the authorities. There was no argument that was made which even attempted to suggest that the wife would recover more than what it was that was the subject of the order, and there is, as I remarked during the course of submissions on a number of occasions, a dearth of material about the parties’ financial circumstances.
His Honour’s determination of the issue before him, namely whether the mother had shown a reasonable excuse for her contravention of the orders was squarely based on the mother’s evidence, which was carefully considered and weighed by his Honour in making that determination. His Honour made no findings about the father’s evidence, nor did he have to, given the issue to be determined.
The ground has not been made out.
The appeal must fail.
Costs
At the conclusion of the hearing, we took submissions from the parties on the question of the costs of the appeal to save the time and expense of making submissions after the appeal was determined.
Counsel for the respondent indicated that should the appeal fail, he would seek to make written submissions which would attach correspondence between the parties. In those circumstances we propose to order the respondent to provide written submission in respect of the costs of the appeal within 21 days of delivery of our reasons and the respondent to reply to those submissions within a further 21 days.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full (May, Ainslie-Wallace & Kent JJ) Court delivered on 11 July 2014.
Associate:
Date: 11 July 2014
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