Peake and Cousins
[2019] FamCAFC 55
•27 March 2019
FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS | [2019] FamCAFC 55 |
| FAMILY LAW – APPEAL – Where the trial judge found the mother was in contravention of final parenting orders made by consent in October 2015 – Where the trial judge ordered the mother to attend a post-separation parenting program by way of penalty pursuant to s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) – Where the trial judge also made interlocutory parenting orders in the substantive proceedings – Where many of the mother’s stated grounds of appeal were so lacking in particulars of the errors purportedly asserted as to not constitute proper grounds of appeal – Where the mother’s grounds of appeal were based primarily upon four central assertions of error – Where nothing to which the mother directed attention on appeal demonstrated appellable error on the part of the trial judge – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60I, 69ZM, 69ZN, 69ZQ, 70NBA, 70NEB(1)(a)(i) Family Law Rules 2004 (Cth) rr 2.02, 7.03 |
| Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 DairyFarmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59 De Winter and De Winter (1979) FLC 90-605 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277 Grabar and Grabar (1976) FLC 90-147; [1976] FamCA 105 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Markes & Markes [2018] FamCAFC 222 Re F: Litigants in person guidelines (2001) FLC 93-072; [2001] FamCA 348 Richards and Richards (1976) FLC 90-037; [1976] FamCA 109 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| APPEAL NUMBER: | SOA | 55 | of | 2018 |
| DATE DELIVERED: | 27 March 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Kent, Watts & Austin JJ |
| HEARING DATE: | 27 March 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 July 2018 (amended 24 January 2019) |
| LOWER COURT MNC: | [2018] FamCA 671 |
REPRESENTATION
| THE APPELLANT: | In person (via video link) |
| THE RESPONDENT: | In person |
Orders
The mother have leave to file and rely upon her Amended Notice of Appeal and Amended Summary of Argument annexed to her affidavit filed 12 March 2019 and her Supplementary Appeal Book.
The appeal be dismissed.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peake & Cousins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 55 of 2018
File Number: MLC 4941 of 2014
| MS PEAKE |
Appellant
And
| MR COUSINS |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
Parenting orders concerning two children (X born in 2008 and Y born in 2010) were made with the consent of their parents, the parties to this appeal, in the Federal Circuit Court of Australia on 13 October 2015 (“the consent orders”).
Those orders provided for the parents to have equal shared parental responsibility; for the children to live with the mother and spend time with the father on alternate weekends from the conclusion of school (or kindergarten for the younger child then) on Friday until 4.30 pm on Sunday. In 2016 the children’s time with the father was to increase to include an overnight stay with the father on two Mondays of each school term. The father also had essentially half school holidays, though this time was split over several stays with the father in the summer school holidays.
Order 16(b) of the consent orders provided as follows:
16. Until further Order that each party their servants and agents be and hereby are restrained by injunction from:
…
(b)Changing the children’s school, kindergarten or child care centre without the consent in writing of the other party.
On 9 May 2018 the father filed an application alleging some 11 counts of contravention by the mother of the consent orders, including alleged contraventions of Order 16(b).
It was uncontroversial that since the making of the consent orders, the mother had removed the children from their school on two occasions without written consent from the father:
a)In April 2016 from P School, E Town to S School, E Town; and
b)In October 2016 from S School, E Town to Suburb K Primary School.
The mother contended that she had a reasonable excuse for both moves, namely:
a)On the first occasion, the father had agreed the parties could no longer afford the school fees for the children to continue to attend P School and therefore the mother had impliedly obtained his consent (although not in writing and not to enrolling the children at S School specifically); and
b)On the second occasion, the mother and the children had moved residences. It was an agreed fact that the change in schools occurred on the second occasion without any written consent from the father.
The trial judge heard and determined the Contravention Application on 31 July 2018. The trial judge rejected the mother’s excuses as being a “reasonable excuse” and found the mother had contravened Order 16(b) on both occasions (see reasons for judgment at [41] and [46]). The contraventions were regarded as “less serious contravention[s]” by the trial judge (at [48]) and, by way of penalty, the mother was ordered to attend a post-separation parenting program in accordance with s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) (“the Act”).
The trial judge’s reasons for ordering the mother’s attendance at a program were:
a)That a fine or bond was not going to be of benefit to the children (at [50]);
b)That the children’s best interests were most likely to be best served by controlling the mother’s behaviour regarding their schooling (at [50]);
c)That the program would hopefully assist the mother in gaining insight into the impact and effect on the children of her failure to consult with the father regarding major long-term decisions (at [51] and [52]);
d)That a second course (the mother having previously completed one) may be selected to ensure that it specifically addresses her unsatisfactory behaviour (at [53]); and
e)That the contraventions occurred almost two years prior in 2016 (at [54]).
The trial judge also noted that the father’s motive for bringing the Contravention Application so long after the orders were contravened may have been in response to the mother’s pending application, filed 11 April 2018, to relocate with the children to the United States of America (“USA”) (at [54]).
The Mother’s Appeal
Preliminary Issues
Application in an Appeal to rely on an Amended Notice of Appeal and Amended Summary of Argument
On 12 March 2019, the mother filed an Application in an Appeal seeking to rely on an Amended Notice of Appeal, an Amended Summary of Argument and a Supplementary Appeal Book.
The mother’s proposed Amended Notice of Appeal and Amended Summary of Argument are annexed to the mother’s supporting affidavit also filed 12 March 2019. The father did not oppose the application and we granted leave at the hearing for the mother to rely upon her Amended Notice of Appeal and her Amended Summary of Argument.
Order 5 of the procedural orders made on 16 October 2018 provided that the mother be at liberty to prepare supplementary appeal books containing any further documents sought to be relied upon at the hearing of her appeal. We received the Supplementary Appeal Book, albeit in circumstances where the father did not oppose our receipt of it even though he maintained that he had only received the document last evening by email. We reserved to the father an opportunity after he had heard the mother’s submissions to address us further on this feature, but the father raised no further complaint.
Further reference will be made to some fundamental difficulties with the mother’s grounds of appeal in terms of the lack of intelligibility of some of them, or the failure of sufficient particularity to identify with precision the error purportedly articulated. In short, many are not legitimate grounds of appeal. These difficulties attend both the grounds set out in the original Notice of Appeal and in the Amended Notice of Appeal.
Subject to that caveat, the grounds of appeal as stated in the mother’s Amended Notice of Appeal appear to be, largely, the same or similar as those articulated in her original Notice of Appeal, albeit re-worded.
Likewise, subject to the caveat referred to, the father does not identify any specific prejudice to him if leave is granted to the mother to rely upon her Amended Notice of Appeal.
It is to be understood that it is not implicit in the grant of leave that this legitimises any ground in the Amended Notice of Appeal which is not a proper ground of appeal.
Leave to appeal
Aside from determining the Contravention Application, the trial judge proceeded to make orders in the substantive parenting proceedings instituted by the mother’s application filed on 11 April 2018 to enable her to relocate with the children to the USA.
In her Notice of Appeal and Amended Notice of Appeal, the mother has indicated that she requires leave to appeal. Orders 1 to 7 and Order 26 relate to the father’s Contravention Application and Orders 8 to 25 and Orders 27 to 29 are interlocutory but concern a child-welfare matter as defined in reg 15A of the Family Law Regulations 1984 (Cth), such that leave to appeal those orders is not required.
Whether leave is required in respect of orders dealing with a Contravention Application was discussed by me, by reference to authority, in Markes & Markes [2018] FamCAFC 222. There I observed at [22]–[26]:
22.The authorities are unclear as to whether leave to appeal is required in relation to orders regarding the contravention of parenting orders.
23.In Kovacs & Graham [[2015] FamCAFC 98] Thackray J (with whom May and Forrest JJ agreed) made the following observation in respect of an application for leave to appeal against an order adjourning a contravention hearing:
26.The father’s Notice of Appeal and Summary of Argument were both drafted on the basis that leave to appeal was required, given that Kent J’s order was interlocutory. However, I am not convinced that leave is needed, since it is at least arguable that the order was “in relation to a child welfare matter” (see reg 15A of the Family Law Regulations 1984 (Cth)).
27.I therefore propose to adopt the same approach as was taken in similar circumstances in Kettle & Baker [2014] FamCAFC 85; namely, in the interests of simplicity, I would proceed on the basis that leave is not required.
(Emphasis added)
24.In Kettle & Baker [[2014] FamCAFC 85] the Full Court consisting of Finn, Strickland and Hogan JJ said:
3.There may be an argument that in order to appeal Forrest J’s order adjourning the hearing of the contravention application, the father requires leave to appeal as the order is interlocutory. However, it might also be argued that it is an interlocutory order relating to children’s issues and thus does not require leave. Given the complexities that surround the proceedings in which the father has been involved, we propose in the interests of simplicity, to proceed on the basis that leave to appeal is not required.
25.However in Graft v McCormick [[2018] FamCAFC 49] Murphy J found that leave to appeal was required to appeal from an order adjourning a contravention hearing in relation to parenting orders (at [50]). However, Murphy J said the following in relation to leave to appeal from orders dismissing a contravention application:
58.The mother has, perhaps out of caution, sought leave to appeal, however this appeal is against orders summarily dismissing four contravention applications. Counsel for the father does not make any submissions relating to leave to appeal. My inclination is that the orders are final orders. In any event, I will proceed on the assumption, favourable to her, that the mother has a right of appeal and that leave is not required.
26.In circumstances where the order appealed from is a declaration that the mother has contravened parenting orders without reasonable excuse, in my judgment such a declaration is probably a final order relating to a child welfare matter, within the meaning of Division 13A of Part VII of the Act. That is, that the declaration is binding upon the parties and finally determines their rights with respect to its subject matter. As such, it is in the nature of a final order and leave to appeal from that order is not, in my opinion, required.
(As per original)
Consistent with these authorities, in my judgment the mother does not require leave to appeal the orders made with respect to the Contravention Application.
The Challenges on Appeal
Taken from her Amended Notice of Appeal, the mother appeals from all of the orders made by the trial judge on 31 July 2018. The orders made were not limited to the disposition of the contravention proceedings. The trial judge also made orders with respect to the parenting proceedings. The orders made are as follows:
a)Orders 1 and 2 - Granting leave to the father to amend his Contravention Application to include copies of the orders allegedly contravened and ordering that the father’s allegations be referred to as Counts 1 to 11 in accordance with Exhibit “C1”;
b)Orders 3 to 5 - Dismissing Counts 2 to 11 of the father’s Contravention Application against the mother;
c)Order 6 - Finding the mother contravened Order 16(b) of the orders made 13 October 2015 without reasonable excuse;
d)Order 7 - Ordering the mother to complete a post-separation parenting program by way of penalty for the contravention;
e)Order 8 - Restraining the mother from communicating with the children’s school in a derogatory manner about the father;
f)Order 9 - Requiring that the orders be sent to the proper officer of each of the children’s current and previous schools;
g)Order 10 - Requesting that the proper officer of each school remove or redact derogatory or offensive communication from the mother about the father from the school’s file;
h)Order 11 - Dismissing the mother’s oral application for orders in the same terms as the non-denigration order above;
i)Orders 12 and 13 - Ordering that the children live with the father while the mother is absent from Australia from 16 August 2018 to 16 September 2018 and that the father be solely responsible for the children’s education including what school they attend while they are living with him;
j)Orders 14 to 16 - Ordering that the mother reschedule any medical appointments booked for the children during the period she is overseas and providing mechanisms for communication between the parents in relation to any medical appointments which cannot be rescheduled during that period;
k)Orders 17 to 19 - Ordering the preparation of a s 11F report which the mother did not oppose at the hearing;[1]
l)Orders 21 to 23 - Ordering the appointment of an Independent Children’s Lawyer (“ICL”) which the mother herself requested;[2]
m)Orders 24 to 26 - Providing for the logistics of the s 11F report and appointment of an ICL and the dismissal of the father’s Contravention Application; and
n)Orders 27 to 29 - Administrative orders providing for the parenting order Fact Sheet to be annexed, for the ex tempore reasons to be transcribed and provided to the parties and for the matter to be adjourned to 26 November 2018.
[1] See Transcript 31 July 2018, p.36 lines 4–15.
[2] Transcript 31 July 2018, p.43 lines 6–36.
Upon reading the self-represented mother’s material for this appeal, it seemed improbable that the mother intended to appeal all of the orders of the trial judge made on 31 July 2018. For example, the orders dismissing Counts 2 to 11 within the Contravention Application (Orders 3 to 5); and orders the mother had herself sought, such as the appointment of an ICL in the substantive proceedings (Order 21). In oral argument this morning, the mother confirmed that she did not intend to challenge on appeal the orders dismissing Counts 2 to 11 of the Contravention Application or the orders for the appointment of an ICL.
At the outset of the hearing of this appeal we sought to confirm with the mother that the crux of her challenges on appeal are in relation to the finding that she contravened the orders of 13 October 2015 without a reasonable excuse and in relation to the penalty imposed as a result (Orders 6 and 7). The trial judge’s reasons for judgment from [31] to [55] are the paragraphs primarily relevant to the trial judge’s finding and penalty with respect to the Contravention Application.
Grounds of Appeal
The self-represented mother’s amended grounds of appeal and Amended Summary of Argument are, with respect to the mother, discursive and unnecessarily repetitive and largely reiterate the arguments raised before, and dealt with by, the trial judge in respect of the father’s Contravention Application.
The seven grounds of appeal as contended for in the mother’s Amended Notice of Appeal are as follows:
1.PROCEDURAL UNFAIRNESS
a. Unreasonable notice of the nature of the proceedings and Orders being sought before the Court.
Breach of Family Rules 2004, for Special Service Rule 7.03 for Application - Contravention under Division 13A of Part VII of the Family Law Act 1975.
There was no special service of the Application - Contravention upon the Appellant. (defect in service)
There was no s.60I Family Dispute Resolution Certificate attached to the Application- Contravention.
These issues of breach of proper procedures and Rules were brought to the attention of the Trial Judge in the Affidavit of the Appellant filed 30 July 2018.
b. The Trial Judge denied procedural fairness and natural justice to the Appellant by denying permission to rely on Affidavit of the Appellant filed 30 July 2018 and its Annexure evidence for defence against any prima facie case and for “reasonable excuse”, particularly relevance of Doctrine of Acsquiscence [sic] of Parental Responsibility and Common Law Parental Responsibility in relation to the Appellant’s attempt to consult the Respondent for long term children’s issues for education and health issues, and change of the children’s school, particularly in the email dated 16 September 2016, attempts to engage the Respondent in Family Dispute Resolution Mediation for long term children’s issues, the Respondent’s failure to take the opportunity to participate in making decisions about major long term issues in relation to the children for education and health (Section 60CC (3)(c)), the Respondent’s failure to fulfil his parental obligation’s to maintain the children (Section 60CC (3)(ca)), and the allegations of Family Violence and past history of Family Violence Intervention Orders and Undertaking by the Respondent to not commit Family Violence in the [E Town] Magistrate Court in 2015 (Sections 60CF and 60GC).
c. The Trial Judge erred in law in failing to consider all relevant and critical factors pursuant to the case history of Case File MLC4941/2014 (particularly the Application in a Case for Enforcement of parenting Orders of 26 June 2014 and 13 October 2015 filed 13 November 2015, and the Initiating Application filed 11 April 2018 by the Appellant), erred in law and facts in failing to consider all relevant and critical factors to the health, education, welfare and safety of the children, and erred in law in failing to make determinations that were just abd [sic] equitable pursuant to “reasonable excuses” and Common Law Parental Responsibility for the health and safety of the children.
d. The Trial Judge denied a Request for adjournment by the Appellant and thus there was no reasonable opportunity to consider and obtain advice about the evidence to be used against the Appellant or the evidence the Appellant needs to rely upon, especially as the Trial Judge had expressly denied the Appellant the permission to rely upon her Affidavit filed 30 July 2018 and its Annexure evidence for defence and to establish reasonable doubt against any prima facie case.
e. Prejudiced, biased, unclear, inappropriate and not considered Judgements by the Trial Judge with reference to irrelevant and inadmissible allegations that were part of improper procedures with no merit for prosecution of non-existing and/or relevant parenting court orders and/or formal Applications that were before the Trial Judge for the scheduled Duty List - solely the Application - Coontravention [sic] filed 9 May 2018.
f. The Trial Judge abused judicial power and proper procedures and conduct, and was prejudiced and biased by denying the Appellant procedural fairness, by prejudicially assisting the Respondent with the prosecution of the Application- Contravention in the amendment of his Application-Contravention and cross examination of his evidence in chief, and also to prejudice the substantive Application for international relocation and sole parental responsibility filed by the Appellant on 11 April 2018, by advising the Respondent that “now he has a case”.
g. The Trial Judge erred in law when she dismissed 10 of the 11 allegations for lack of merit of prosecution and yet brought punishment against the Applellant [sic].
h. The Appellant was denied procedural fairness. The Trial Judge erred in law in failing to act reasonably and impartially and erred in law in the discharge of her duties and exercise of her jurisdiction to conduct the proceedings wtihout [sic] prejudice and bias to the Appellant and had erred in law in her failing to make determination that was just and equitable.
2. PROCEDURAL ULTRA VIRES AND LACK OF JURISDICTION AND MERIT FOR PROSECUTION for the Application- Contravention filed 9 May 2018 that was solely scheduled before the Trial Judge on 31 July 2018.
a. The only Application that was formally scheduled in the Duty List before the Trial Judge was the Application- Contravention filed 9 May 2018. Lack of Jurisdiction.
The Trial Judge erred in law, proper procedures and process, and jurisdiction with procedural ultra vires by referring to inadmissible evidence and allegations, and then bringing punishment and judgement against the Appellant for the dismissed 10 of the 11 allegations because lack of merit of prosecution.
b. The Trial Judge erred in law by not summarily dismissing the Application - Contravention filed 9 May 2018, and allegations, as was requested by the Appellant’s Affidavit filed 30 July 2018, on the basis and grounds of no merit for prosecution and for breach of proper procedures and processes under the Family Law Rules 2004 and Family Law Act 1975.
c. The Trial Judge erred in law with Procedural ultra vires, by making unjust and inequitabe [sic] determination for allegations that were dismissed and struck out without merit for prosecution because they were unlawful, invalid and inapplicable pursuant to the Family Law Rules 2004, the Family Law Act 1975 and the Evidence Act 1995.
3. IMPROPER PROCEDURES AND PROCESSES
a. Improper and abuse of processess [sic] and procedures pursuant to Division 13 A of the Family Law Act 1975, or Part XIII of the Family Law Act 1975. the Family Law Rules 2004 and Evidence Act 1995 in the Trial Judge’s conduct of the proceedings, Orders and Judgement.
4. CREDIBILITY OF RESPONDENT AND ULTERIOR MOTIVES
5. APPREHENSION OF PREDETERMINATION
6.CHALLENGE TO FINDING OF FACTS, FAILURE TO FINDING OF FACT AND ERRONEOUS FINDING OF FACT AND IN THE BEST INTEREST OF THE CHILDREN
7. ERRONEOUS PLACING OF WEIGHT ON ABSENCE OF WRITTEN AGREEMENT WITHOUT CONSIDERATION OF THE ENTIRETY OF EVIDENCE BEFORE THE COURT, AND TO REFLECT UPON THE EVIDENCE (INCLUDING FAMILY VIOLENCE) AND TO DRAW JUST AND PROPER CONCLUSIONS FROM ALL THE EVIDENCE, VIEWED AS A WHOLE.
(As per original)
It is readily apparent that many of these stated grounds are so lacking in particulars of the errors purportedly asserted as to not constitute proper grounds of appeal. Others are unintelligible or so vague as to likewise fail to identify the particular error asserted.
The mother is self-represented on this appeal, as is the father. Whilst on the hearing of the appeal we afforded the mother some assistance in attempting to have the challenges she wishes to raise on appeal clarified, it was obviously also necessary in that process to maintain fairness to the father.
In Bahonko v Sterjov (2008) 166 FCR 415 the Full Court of the Federal Court of Australia observed that the circumstance that a litigant is unrepresented brings no special privileges and cannot justify lack of proper attention to the interests of other parties. That Court stated as follows with respect to the obligation of an appeal court, and the fundamental principle of the appellate process that appeals are made available for the correction of error:[3]
…This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
[3]Bahonko v Sterjov (2008) 166 FCR 415 at [3].
It appears that the mother’s grounds of appeal are based primarily upon four central assertions of error, namely, that the trial judge:
a)Demonstrated bias against the mother;
b)Failed to afford the mother procedural fairness;
c)Failed to take into account relevant evidence; and
d)Took into account irrelevant evidence.
Within the overall complaint about lack of procedural fairness to the mother are several components which I will deal with in addressing that overall challenge.
There is also a further complaint that appears to be raised in the mother’s Amended Summary of Argument specifically that the trial judge made erroneous findings of fact in relation to various matters. Though not included in her Amended Notice of Appeal, it is discussed below.
Some challenges advanced by the mother in oral argument were advanced in support of more than one of the above categories of error. For example, the fact that the trial judge refused to allow the mother to rely upon her affidavit filed on 30 July 2018 is relied upon by the mother in support of each of her complaints about bias, lack of procedural fairness and failure to take account of relevant evidence.
Finally, it is to be observed that some of the mother’s Amended Summary of Argument and much of her oral argument this morning is directed to underlying issues in the ongoing substantive parenting dispute between the parties rather than being relevant to our review of the orders made by the trial judge on 31 July 2018.
Assertion of Bias
The mother does not specify what kind of bias she asserts on the part of the trial judge however it appears as though she is asserting apprehended bias resulting from the trial judge’s conduct throughout the proceedings.
It is well settled that where apprehended bias is raised as one ground of appeal, it ought to be the first ground dealt with.[4]
[4]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117].
The law in relation to apprehended bias is well established. In Johnson v Johnson (2000) 201 CLR 488 it was said at 492:
… [T]he test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias … is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(Footnote omitted)
This principle was expanded on in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 where the High Court said this at [8]:
…Its [the apprehension of bias principle] application requires two steps. First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…
The mother’s Amended Notice of Appeal lacks detail and specificity sufficient to support the allegations of bias. Her Amended Summary of Argument offers little clarification. Her oral argument on appeal did not cure this deficiency.
It appears the mother alleges that the trial judge is biased due to “assisting the Respondent’s Application for the prosecution of the Appellant without affording procedural fairness” as well as “assistance in the re-writing of his Application-Contravention in the amendment of his Application-Contravention”[5] and “inflammatory, defamatory, derogatory and prejudicial remarks and comments about the Appellant’s alleged parenting skills as a ‘mother’ in relation to her Human Rights of freedom of movemenbt [sic] and need to travel overseas during August 2018 for her employment prospects”.[6]
[5] Mother’s Amended Summary of Argument at paragraph 72.
[6] Mother’s Amended Summary of Argument at paragraph 75.
In the transcript of 31 July 2018 at page 2, it is clear that her Honour raises with the father the inadequacies of the form of his application. Her Honour directed the father to Chapter 21 of the Family Law Rules 2004 (Cth) (“the Rules”) and advised that his application was deficient in several ways including that he failed to specify the orders which it was alleged were contravened and failed to annex the orders to the application. The matter was stood down for the self-represented father to correct those deficiencies. That is the extent to which the trial judge “assisted” the father.
In Re F: Litigants in person guidelines (2001) FLC 93-072 (“Re F”) it was held that a judge “should ensure as far as possible that procedural fairness is afforded to all parties whether represented or appearing in person”.[7] Similarly, at 88,277:
235.Fourthly, the judge may take the view that he or she should assist in the reformulation of applications which may be made by the litigant in person, including but not confined to matters such as procedural steps…
[7]Re F: Litigants in person guidelines (2001) FLC 93-072 at 88,278.
It is also to be noted that since Re F was decided, Division 12A was introduced into Part VII of the Act in 2006. That Division applies to all proceedings under Part VII (s 69ZM) and as the subject contravention proceedings were pursuant to Division 13A within Part VII, Division 12A applied to them. Relevantly, without being exhaustive, that Division requires the Court to, for example, “actively direct, control and manage the conduct of the proceedings” (s 69ZN(4)) and for the proceedings to be conducted “without undue delay and with as little formality and legal technicality and form, as possible” (s 69ZN(7)).
It was entirely consistent with the guidelines in Re F and the requirements of Division 12A for the trial judge to have provided to the father the limited assistance which her Honour did.
It is also to be observed that the mother did not raise with the trial judge any complaint about, or concerns relating to, any apprehension of bias. There is a fundamental hurdle to an appellant first raising such a complaint on appeal.[8]
[8]Vakauta v Kelly (1989) 167 CLR 568.
There is no substance in the mother’s complaints about bias on the part of the trial judge.
As for the alleged prejudicial comments at pages 38 to 39 of the transcript of 31 July 2018, her Honour says this in the context of the mother contending the father will not take the children to school when she is away for a month in the USA:[9]
HER HONOUR: Okay. Look, don’t try and control what happens in his household. If you don’t bother to look after the children when you’ve got care of them and you want to leave them with him because you’re not in the country, don’t then criticise how he looks after them Right. He should take them to school – please take them to school but don’t overregulate what happens in his household - - -
[MS PEAKE]: I’m not, your Honour
HER HONOUR: - - - when the reason that they’re in his household is because you’re not in Australia.
[9] Transcript 31 July 2018, p.38 line 42 to p.39 line 4.
On a reading of the transcript, there are occasions which the trial judge might be described as being short with the mother however it does not appear to be to such an extent as may cause a fair-minded lay observer to reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues in dispute.
Possibly the highest point at which the trial judge may be described as being short with the mother occurs during the following exchange:[10]
[10] Transcript 31 July 2018, p.23 line 7 to p.24 line 33.
HER HONOUR: Okay. So why didn’t you then enter into negotiations with him about which other school it would be?
[MS PEAKE]: I did discuss with him. He is belligerent and there – it would be my evidence when it comes to reasonable excuses that it is very difficult to communicate with him, hence my application on foot to - - -
HER HONOUR: Have a look at page 13 of 72 [of the father’s affidavit filed 8 May 2018] and tell me who’s belligerent.
[MS PEAKE]: Again, that is - - -
HER HONOUR: 13 of 72. Look at it - - -
[MS PEAKE]: 13.
HER HONOUR: - - - and read it, please.
[MS PEAKE]: Yes. That’s - - -
HER HONOUR: Is that from you?
[MS PEAKE]: Yes, that is.
HER HONOUR: And what does it say?
[MS PEAKE]: 13 of – I say, your Honour, that is - - -
HER HONOUR: What does it say?
[MS PEAKE]: I say:
I do not need your permission when it comes to our - -
HER HONOUR: No. It starts with:
For your information.
Okay. Read it out.
[MS PEAKE]:
For your information with regards to their schooling and education, I do not need – I don’t need your permission.
HER HONOUR: What else does it say?
[MS PEAKE]:
When it comes time if I don’t have your agreement then we will see each other in court again, period. I’m not too fussed.
Now - - -
HER HONOUR: Okay. So who’s belligerent?
[MS PEAKE]: Again, your Honour, this is one email of a trail of emails. So he is - - -
HER HONOUR: Yes. So tell me – show me the belligerent ones from the father.
[MS PEAKE]: Belligerent from the father, he – at - - -
HER HONOUR: In this email trail that you have referred to show me the belligerent ones.
[MS PEAKE]: There’s a – I’m sorry. I didn’t – he had alleged to [Suburb K Primary School] that I had abandoned the children and I sent - - -
HER HONOUR: In this email trail?
[MS PEAKE]: Yes, your Honour. In the many - - -
HER HONOUR: Get back to what’s relevant for the order, please.
[MS PEAKE]: I’m sorry.
However, that exchange falls well short of being capable of evidencing apprehended bias on the part of the trial judge.
Procedural Unfairness
The mother asserts that she was denied procedural fairness for the following reasons:
a)the trial judge denied the mother from relying on her affidavit filed 30 July 2018 and its annexures in support of the mother’s argument that she had a reasonable excuse for contravening the orders;
b)the father’s Contravention Application was defective in a number of ways, including the failure to annex the orders asserted to have been contravened as well as a s 60I Certificate;
c)the father’s Contravention Application was not served upon the mother by way of special service as required by the Rules;
d)that as only the father’s Contravention Application was listed for hearing on 31 July 2018 it was procedurally unfair to the mother for orders to be made by the trial judge in relation to the parenting proceedings; and
e)that the trial judge was in error in refusing the mother an adjournment.
A failure to afford procedural fairness is an error of law,[11] however, such a failure will not automatically entitle the aggrieved party to a new trial.[12]
[11]Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321.
[12]Stead v State Government Insurance Commission (1986) 161 CLR 141.
In relation to the exclusion of the mother’s affidavit filed 30 July 2018, the following exchange took place at the hearing on 31 July 2018:[13]
[13] Transcript 31 July 2018, p.10 line 36 to p.11 line 22.
HER HONOUR: I’m sorry for the delay in returning. Right. So now we’re at the part of the proceedings where, [Mr Cousins], you give the evidence in support of the application, which I take to be your affidavit. That is correct?
[MR COUSINS]: Yes, your Honour.
HER HONOUR: And [Ms Peake] can cross-examine you. And then I will hear her response to the allegations such as whether there is a reasonable excuse, and then hear her evidence if she elects to give evidence, and then determine the case. Now, a few things that you might need to know because you are litigants in person is that you cannot – if [Ms Peake] wants to put something to you she needs to do that in cross-examination unless it’s already clearly in an affidavit of hers. [Ms Peake], what I can say is I’m not going to permit you to rely on the affidavit that you’ve sworn in toto. It is full of comment, argument, submissions. I, quite frankly, haven’t got time to read 44 pages that you have written. Much of it is irrelevant.
[MS PEAKE]: I understand, your Honour.
HER HONOUR: Right. So if you are going to rely on facts and matters set out you will need to put them to the father orally.
[MS PEAKE]: Yes, your Honour. May I also ask - - -
HER HONOUR: No. You may just listen - - -
[MS PEAKE]: Sorry.
HER HONOUR: - - - for the time being. If it’s the case of [Ms Peake] wanting to establish a point you can’t just wait until it’s your turn to give evidence because if you haven’t put it to the father he won’t have had an opportunity to respond. So if there are essential parts of your case that you want to put you would need to put them to the father whilst he’s in the witness box.
[MS PEAKE]: Yes, your Honour.
(Emphasis added)
Plainly, the trial judge invited the mother to cross-examine the father on all facts and matters set out in her affidavit upon which she intended to rely.
The trial judge recorded the following in her Honour’s reasons for judgment:
14.The mother sought to rely on an affidavit sworn 30 July 2018 which is a mass of argument, submission and irrelevant material. Paragraphs 10 to 12 are emblematic and read as follows:-
“10The Applicant Father has continually tried to play “victim” and “ignorant to proper procedures and fair processes, being self-represented when he has the financial capacity to afford legal representation.
During his FCC application and proceedings, with his documented Australian taxable income of AUD$105,000 (and other undisclosed foreign and USA incomes), the Applicant Father stated he was “too poor” to contribute to our children’s schooling and to increase their child support contribution of $110 per month.
During the same period, the Applicant was spending approximately $1,000 per month on personal entertainment, which included subscriptions to online dating sites, E‑harmony, Zoosks and RSVP and approximately $90,000 for his legal fees.
I repeat my assertions the Applicant Father’s [sic] has the financial capability to afford legal representation, and to contribute to attend private Family Court Reporter and for an Independent Children’s Lawyer for our children, while I continue to be the full time carer parent, being prejudiced by time and financial constraints, bankruptcy (from incurred marital debts) and ongoing litigation for our children’s rights to be appropriately supported by both parents and by his financial and emotional abuse through inequitable, unjust and unfair processes and improper procedures.
ANNEXURE 3 – The Applicant Father’s CBA bank statements
11.I say this Honourable Court has been repeatedly discriminatory, unjust and unfair towards me, in its acceptance of the Applicant Father’s constant allegations and untruths, without any testing of his evidence.
12.I say that this Honourable Court has repeatedly erred in law in it denial to me, procedural fairness, had failed to repeatedly consider and to test all relevant and critical factors in accordance to the “reasonable person test”, had mad [sic] judicial determinations that had been unjust, inequitable and unfair, and had repeatedly applied incorrect judiciary discretionary powers, to allow continued victimisation of me by the Applicant Father, and to cause continued extreme hardship to our children, by contravening their rights under the Family law Act 1097 [sic], to be supported and cared for appropriately by both parents and to have their rights protected against abuses of processes.”
15.The mother’s affidavit is 75 paragraphs over 44 pages which concludes “I seek to provide complete responses with evidence, to his Affidavit in Responses, filed April 2018 and to all of his allegations in a follow up Affidavit”. I informed the mother that I would not permit her to rely on the affidavit but that she should put relevant matters to the father when he was in the witness box and could herself say what she wanted to say in evidence from the witness box. To do otherwise would have required the father to object or respond to the multifarious allegations of the mother in the witness box lest the mother proceed with her defence to the contravention application thinking that clearly objectionable evidence was before the court and accepted.
(As per original)
The mother asserts that the trial judge erred in refusing her request to rely upon her affidavit, in particular the annexures which included emails from the father which, on the mother’s case, demonstrated a reasonable excuse for her changing the children’s schools without the written consent of the father. The mother also sought to rely on the parties’ final property orders dated 19 February 2015 which contained a notation that the father did not want the children to attend P School for financial reasons.
The mother argued that the father had told her he did not want the children going to P School as it was too expensive and that this constituted consent for her to change their schools on the first occasion without the father’s explicit written consent.
The father was questioned in cross-examination about the emails the mother contends were not considered. The father admitted that he did not want the children to attend P School as it was too expensive but stated he never agreed to them moving schools or agreed to any school in particular when the mother moved them.[14]
[14] Transcript 31 July 2018, p.15 lines 28–32.
As was pointed out to the mother by the trial judge, the orders required the written consent of both parties for the children’s schooling to be changed. The mother admitted that there was no such explicit written consent.[15]
[15] Transcript 31 July 2018, p.29 lines 1–8.
The mother is unable to demonstrate on appeal what prejudice she contends was suffered by reason of the trial judge’s refusal to admit her affidavit. The mother was invited to, and did, cross-examine the father about relevant content of her affidavit.
In relation to the contention that the orders allegedly contravened ought to have been annexed to the father’s application, the trial judge raised with the father the deficiencies of the Contravention Application in that the orders said to have been contravened were not stated in the application or annexed.
The trial judge ultimately exercised her discretion, as was open to her Honour to do, to amend the father’s application to attach those orders after the following exchange:[16]
[16] Transcript 31 July 2018, p.8 line 21 to p.9 line 30.
HER HONOUR: …Now, the evidence upon which you rely is set out in your affidavit; is that right, [Mr Cousins]?
[MR COUSINS]: Yes, your Honour. I also have provided the court with copies of some of the orders which were not in the affidavit and I have an extra copy for the respondent.
HER HONOUR: Well, it should have been that your – the orders were actually attached to the application. Do not go making up your own application form again.
[MR COUSINS]: Sorry, your Honour.
HER HONOUR: All right. Had you followed the one that the court provides it would have said, “Attach the orders alleged to have been contravened”, which would have, in fact, shown you that in relation to counts 4 to 11 you didn’t have a case. So I will permit you to – [Ms Peake], do you say that there’s any prejudice whatsoever to you of the orders that are allegedly contravened by – in counts 1 to 3 being attached now? They’re the orders of 13 October 2015 and 26 June 2014.
[MS PEAKE]: Is that – sorry, your Honour. Is that 16(b) of 13 October?
HER HONOUR: We’ve got - - -
[MS PEAKE]: Or is that abusing, insulting – 16(a)?
HER HONOUR: Twenty – the orders of 26 June 2014, 13 October 2015 and 10 November 2017.
[MR COUSINS]: Your Honour - - -
[MS PEAKE]: Which section?
HER HONOUR: You don’t get to say anything. What is the prejudice to you - - -
[MR COUSINS]: The - - -
HER HONOUR: - - - of those orders now being attached to the contravention application?
[MS PEAKE]: Could you please repeat that, your Honour. I’m a little bit confused.
HER HONOUR: For the third time, what is the prejudice to you? Where do – the father should have attached any relevant orders to his contravention application. He failed to do so. Right. However, he can apply for – and I take it that he would be applying for – permission to amend his application now to attach them. I cannot see that you could possibly suffer any prejudice by that because you would have at all times known of the orders. So can you tell me if there’s something I don’t understand and whether there is any prejudice to you.
[MS PEAKE]: I would only say it prejudices me with regards to getting evidence to counterclaim that, but no.
HER HONOUR: How? How can that possibly be the case? You knew what order he was talking about. You’ve – you are aware of these orders. How can you say that you would have got other evidence?
[MS PEAKE]: Well, I would have pulled up more emails but I’m happy to go ahead, your Honour. It’s fine.
(Emphasis added)
As is clear, the mother ultimately acceded to proceeding with the hearing of the father’s Contravention Application despite the orders not having been attached to that application.
In relation to the mother’s assertion that a s 60I Certificate was required, s 60I of the Act does provide that a s 60I Certificate is required if filing a Contravention Application in respect of Part VII orders made more than 12 months prior.[17] However, r 2.02 of the Rules sets out the documents required to be filed as follows:
2.02 Documents to be filed with applications
(1) A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.
[17] See Family Law Act 1975 (Cth) s 60I(9)(c).
Table 2.2 Documents to be filed with applications
…
10A Application—Contravention in which an order is sought under Part VII of the Act (a) an affidavit (see subrules 21.02(2) and (3)); and
(b) either:
(i) a certificate given to the applicant by the family dispute resolution practitioner under subsection 60I(8) of the Act; or
(ii) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed (Emphasis added)
As the mother had filed an Initiating Application for parenting orders in April 2018, to which she attached a Family Dispute Resolution Exemption, no further s 60I Certificate was required to be filed pursuant to r 2.02(1).
The mother asserts that she did not receive the father’s Contravention Application by way of special service as required by r 7.03 of the Rules.
In this respect, it is clear that the mother had received the application due to her attendance at Court on 31 July 2018. Further, the mother clearly had sufficient time to review and consider that application given that she was able to file a 44 page affidavit (plus around 187 pages of annexures) in response to the father’s application the day prior to the hearing.
Further, the mother raised no concerns before the trial judge as to the service of that application. In the circumstances, the mother is unable to demonstrate any miscarriage of justice in the father’s failure to serve the application by way of special service.
The mother’s complaint about the trial judge proceeding to make orders in the parenting proceedings, when only the Contravention Application was listed for hearing, overlooks several important points. First, s 70NBA of the Act makes express provision for parenting orders to be varied by the Court in contravention proceedings whether or not a contravention is established. The fact that contravention proceedings were instituted thus enlivened the prospect of further or other parenting orders being made. Second, reference has already been made to the principles set out in Division 12A of Part VII as contained in s 69ZN. In s 69ZQ(1)(g), the duties upon the Court expressed to give effect to those principles include the duty to “deal with as many aspects of the matter as it can on a single occasion”. It follows that having determined the contravention proceedings, the trial judge properly proceeded to consider and make orders concerning the substantive parenting proceedings.
With respect to the orders made, the point has already been made that several of the orders were not opposed by the mother at the hearing or indeed were orders sought by the mother herself in the parenting proceedings.
Nothing to which the mother directs attention on appeal demonstrates that she suffered any prejudice or that there was some denial of procedural fairness to her by the trial judge making orders additional to those orders specific to the contravention proceedings. I interpolate here that nothing to which the mother directed our attention on appeal demonstrates any error in the exercise of discretion by the trial judge in the making of the interlocutory orders made concerning the parenting dispute. In oral argument this morning, the mother complained that she wished to attend private mediation rather than a s 11F report being undertaken. Be that as it may, no error is demonstrated on the part of the trial judge in making the order for a s 11F report.
Finally, as to the question of adjournment, the following appears to be the only exchange between the mother and the trial judge where the topic of adjournment is raised and it can be seen that at no point does the mother actually make an application for any adjournment:[18]
[18] Transcript 31 July 2018, p.33 line 42 to p.34 line 16.
HER HONOUR: Yes. Well, get a handle on – you know, get hold of it because you’re making your own children suffer by not being able to relate properly to people like the father and the school.
[MS PEAKE]: Again, that will be contradicted in the existing family report, your Honour.
HER HONOUR: So I can send you to post separation parenting programs. I can adjourn the proceedings to allow either or both of you to vary the order. I don’t see the purpose in doing that.
[MS PEAKE]: May I ask how do I do that, your Honour?
HER HONOUR: You apply to vary the order but I’m not interested in adjourning it – adjourning penalties today. We can deal with this today.
[MS PEAKE]: Vary the final parenting orders?
HER HONOUR: You can apply to do that. You know - - -
[MS PEAKE]: That is on foot, your Honour.
HER HONOUR: That’s right. So it’s no use adjourning this for that…
There is no substance in any of the mother’s complaints concerning procedural fairness.
Failure To Take Into Account Relevant Evidence
By this ground, the mother again agitates error in the trial judge’s failure to admit her affidavit filed 30 July 2018 and therefore take into account what the mother asserts is relevant evidence. I will not repeat what has already been said about this feature.
The mother must demonstrate that the evidence which she contends was wrongly excluded would have had a material impact on the trial judgment.[19] However, the mother is unable to point on appeal to any evidence contained within her affidavit which would have had a material impact on the decision. There is no substance to this complaint.
[19]DairyFarmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 463.
Taking Into Account Irrelevant Evidence
The mother’s argument in respect of this ground appears to be that the trial judge erred in considering the 10 counts of contravention that were dismissed when making findings about the contravention of which her Honour was satisfied.
Her Honour states at [20]:
All but one of the father’s alleged contraventions were misconceived.
Her Honour then provides reasons at [21] to [30] as to why she is not satisfied that Counts 2 to 11 of the father’s application were made out.
There is no merit in the mother’s argument to the effect that despite dismissing these counts, the trial judge somehow took them into account in the trial judge’s assessment of sanction.
Erroneous Findings Of Fact
The mother’s Amended Summary of Argument argues that the trial judge erred by “finding of facts for orders in relation to denigration of the Respondent on emails”[20] and “finding of facts in relation to the allegations against the Appellant for non‑payment of [P School] fees”.[21]
[20] Mother’s Amended Summary of Argument at paragraph 97.
[21] Mother’s Amended Summary of Argument at paragraph 98.
The law surrounding an appellate court’s intervention in a trial judge’s findings of fact is well established. It must be established that any mistake of fact has influenced the final result.[22] Similarly, an appeal court should not interfere with a trial judge’s finding of fact if there was evidence on which that finding could be made; that is, if it was reasonably open on the evidence.[23]
[22]De Winter and De Winter (1979) FLC 90-605.
[23] Edwards v Noble (1971) 125 CLR 296; Richards and Richards (1976) FLC 90-037; Grabar and Grabar (1976) FLC 90‑147; Gronow v Gronow (1979) 144 CLR 513; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550.
The father alleged that the mother had denigrated the father in emails to the children’s school in contravention of the Orders made on 13 October 2015. Those emails comprised Annexures 9 to 14 to the father’s affidavit filed 9 May 2018.
The trial judge said this in relation to her findings about the mother’s denigrating emails:
28. The order in relation to non-denigration is one which is found in the primary order made on 13 October 2015, in particular, paragraph 16(a), which says that until further order, each party, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or any member of their household in the presence or the hearing of the children or permitting any other person to do so.
29. The denigration alleged by the father was not to or within the hearing of the children or in circumstances where it would be likely to come to their attention. The father sought to rely on section 121 of the Act, which prohibits distribution or information to the public which identifies parties to proceedings in this Court. In my view, whilst the school is a public place, it is not “the public” within the meaning of section 121 of the Family Law Act 1975. In any event, if there was a case pursuant to s121, it would not be prosecuted by the father.
30. I am satisfied that the emails did denigrate the father. However, the mother’s actions were not in contravention of any order.
It was entirely appropriate, and indeed necessary, for the trial judge to discuss the father’s allegation in the context of his application, and the contention that this was an irrelevant consideration for the trial judge is entirely misconceived.
As for non-payment by the mother of the P School fees, the trial judge found:
21. In count 2, the father alleged that without excuse, the mother defaulted in payment of her contribution of school fees. He says, as a result, outstanding fees for the children’s enrolment at [P School] were required to be paid by him as a result of the school suing for payment. The amount paid was $5111.05. Paragraph 8 of the order made on 26 June 2014 provides that pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989, the father paid, by way of non-periodic financial support for the children, various expenses, including “half of all school fees, including excursions”. However, that order does not impose an obligation on the mother to pay the other half.
22. Paragraph 6 of the primary order made on 13 October 2015 provides that, “In the event that the wife chooses to pay part or a whole of the school fees for [X] and [Y] at [P School] for 2016 prior to the determination of her departure application, she would be at liberty to seek an order that the husband pay half of any such fees paid by her in the event that she is successful with such an application”. Still, that is not an order which imposes upon the wife an obligation to pay.
The mother is unable to demonstrate error on the part of the trial judge in making the findings she did.
Conclusion
There being no substance in any of the complaints agitated by the mother on appeal, the appeal must be dismissed.
Costs
The father confirmed on the hearing of the appeal that he has incurred no legal costs and therefore seeks no order. In those circumstances I would order that there be no order for costs of the appeal proceedings.
Orders
I would therefore make the following orders:
(1)The mother have leave to file and rely upon her Amended Notice of Appeal and Amended Summary of Argument annexed to her affidavit filed 12 March 2019 and her Supplementary Appeal Book.
(2)The appeal be dismissed.
(3)There be no order as to costs of the appeal.
WATTS J
I agree with the reasons given by the presiding judge and I agree with the orders that are proposed by the presiding judge.
AUSTIN J
I agree with the orders proposed by the presiding judge and with the reasons given for those orders.
I certify that the preceding ninety (90) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Kent, Watts & Austin JJ) delivered on 27 March 2019.
Associate:
Date: 1 April 2019
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