Peake and Cousins (No. 2)
[2018] FamCA 1056
•12 December 2018
FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS (NO. 2) | [2018] FamCA 1056 |
| FAMILY LAW – CHILDREN – Contravention – where both parties, as litigants representing themselves, bring allegations of breaches of orders – where the Applicant alleges breached that relate to incidents from some years before – abuse of process – where respondent is denied electronic communication without reasonable excuse as applicant leaves the children responsible for effecting the communication – breaches proved. FAMILY LAW – JUDGMENTS – Stay – where Judge recuses herself after making orders and transfers application for stay pending appeal to Case Management Judge – where there is no basis to grant the stay. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Federal Circuit Court Rules 2001 (Cth) |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Cousins & Peake [2018] FamCA 671 Cousins & Peake (No. 2) [2018] FamCA 729 Neil v Nott [1994] HCA 23; 68 ALJR 509; 121 ALR 148 Peake & Cousins [2018] FamCA 496 Peake & Cousins [2018] FamCAFC 241 Peake & Cousins [2017] FamCAFC 181 Peake & Cousins [2016] FCCA 2856 R v Nicholson [1951] VLR 273 Walters & Carson [2017] FamCAFC 128 |
| APPLICANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| INDEPENDENT CHILDREN’S LAWYER: | Southern Family Law |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| DATE DELIVERED: | 12 December 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 13-14 November and 7 December 2018 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Agresta |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Southern Family Law |
Orders
7 DECEMBER 2018
The comprehensive reasons for judgment arising from the orders that follow this day, be published as soon as possible.
MS PEAKE sign a bond within the meaning of section 70NEC of the Family Law Act 1975 (Cth) (“the Act”) to be executed in front of a Registrar of this Court by no later than 4:00 pm on Friday, 14 December 2018.
If Ms Peake, declines to execute the said bond, the Registrar report to the Court to that effect, and the matter be relisted for further hearing as soon as practicable.
In relation to the contravention application in which the respondent is MR COUSINS, the two allegations prosecuted by the applicant MS PEAKE are found proved but dismissed as of minimal significance and not appropriate to apply any of the exercise of power set out in section 70NED of the Act.
In respect of the remaining interim applications before the Court, the matters are adjourned to a date to be fixed and judgment is reserved to be published as quickly as possible.
12 DECEMBER 2018
Save as to the specific orders mentioned hereafter, the application in a case filed by the mother on 7 August 2018 (as amended on 28 August 2018) is dismissed.
The appealed orders of the Honourable Justice Bennett (paragraphs 7, 8 and 20) made on 31 July 2018 are stayed until the determination of the mother’s appeal.
The application in a case filed by the mother on 7 September 2018 is dismissed.
In respect of the contravention application of the mother against the father filed 28 August 2018:
(a) All allegations not pressed are struck out;
(b) Of the allegations pressed, (34), (43) and (45) are struck out;
(c) Allegations (2) and (42) are withdrawn;
(d) Allegations (30) and (31) are struck out for duplicity; and
(e) Allegation (22) is proved but dismissed as trifling.
The contravention application filed by the mother on 28 August 2018 is otherwise dismissed.
The contravention application filed by the father on 10 August 2018 is otherwise dismissed.
That pursuant to s33B of the Family Law Act 1975 (Cth) all extant applications (save for the stay application filed on 12 December 2018) are transferred to the Federal Circuit Court at Melbourne to be listed on a date to be advised.
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 (No. 2) 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).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4941 of 2014
| Ms Peake |
Applicant
And
| Mr Cousins |
Respondent
REASONS FOR JUDGMENT
Before the Court in both November and December 2018 were a number of applications between Mr Cousins (“the father”) and Ms Peake (“the mother”). The applications before the Court are multi-faceted. Each party appeared without legal representation which meant that the complexity of the dispute was increased by their respective inabilities to give any ground. Some orders were pronounced at the hearing on 7 December 2018, but the balance are now pronounced and published.
From the mother’s perspective, the contravention application of the father was seen as a delaying tactic because she has an extant application for final relief to vary parenting orders. She wishes to relocate with the children to the United States of America.
Later in these reasons, I shall deal with the mother’s application for the father to be declared vexatious. However, having heard and determined this multi-faceted dispute, it is evident to me that the mother is obsessive about issues that should have been resolved a long time ago and vindictive towards the father. She described her pathway as “seeking justice”, but in reality, she wastes an enormous amount of time which the Courts have to provide, but they do so at the expense and delay to other litigants. The Judges next hearing the foreshadowed proceedings (including the Full Court proceedings) might contemplate the use of s 102QB(3) of the Family Law Act 1975 (Cth) (“the Act”) to stop this waste of Court time.
The parenting and associated dispute has to be seen in the context of final parenting orders that the parties consented to, and requested the Federal Circuit Court to make, on 13 October 2015. The finality of those orders did not last long.
Since 2015, and particularly in 2018, there have been a number of hearings, most of which feature in these reasons. A fair reading of the judgments shows that the mother is at best misguided and, at worst, obsessive to the point of malevolence.
Background
The parties commenced living together in March 2005, married in 2005, separated in January 2014 and were the subject of a divorce order on 29 April 2015.
In addition to the parenting dispute that culminated in the orders of 13 October 2015, there have also been proceedings in the Federal Circuit Court in relation to child support issues and an appeal by the mother against orders made in that court. The Full Court dismissed the mothers appeal[1]. The mother recently sought to “re-open” the child support issue in the Full Court. Strickland J dismissed her application on 3 December 2018[2]. The mother had then lodged a contempt application against the father in this Court which relates to his lack of discovery and “perjury” in the Federal Circuit Court. That application should have been in the Federal Circuit Court if it had some prospect of success. The supporting material I have read shows little apparent prospect having regard to the authorities in respect of contempt. The mother withdrew the contempt application only to indicate she will re-issue it in the Federal Circuit Court.
[1] [2017] FamCAFC 181
[2] [2018] FamCAFC 241
Whilst one might have expected that three years on, the metaphorical dust may have settled, that is not the case. Arising out of the proceedings in 2018, there are now two extant appeals. In respect of one of those, there were applications within an appeal before Strickland J on 3 December 2018. His Honour dismissed those applications leaving the appeal alive.
A recent pending appeal relates to a hearing by Bennett J in which her Honour found that the mother had contravened the parenting orders and directed her to attend a post-separation parenting course. Another appeal is against the refusal by Johns J on 2 July 2018[3] to expedite the mother’s substantive application for the relocation orders; I have raised with the mother the question of whether that is a decree under the Act, because if it is not, no appeal lies. Notwithstanding those discussions, the mother seems intent in pressing on.
[3] [2018] FamCA 496
The court file itself indicates the problematic nature of the parties relationship in that there are over 170 documents contained in a box, all relating to hearings which number somewhere between 15 and 20 over the space of three years.
The father is a consultant by occupation. He is apparently the head of the Australian arm of an international company that has its head office in the United States of America. The mother was a health professional, but has gone back to full time study and otherwise cares for the two children. Both parties have re-partnered, although the mother was at pains to point out that her partner does not have responsibility for the care of the two children. The father has remarried and has children from that relationship.
The present proceedings
The present proceedings are found in five applications now that the contempt application filed on 3 December 2018 and its accompanying application in a case filed on 4 December 2018 are concluded:
a)The father’s contravention application filed 10 August 2018;
b)The mother’s contravention application filed 28 August 2018;
c)The mother’s application in a case filed 7 August 2018, and later amended on 28 August 2018;
d)The mother’s application in a case filed 7 September 2018; and
e)The mother’s contravention application filed 1 November 2018.
The contravention applications
I have already made reference to the fact that both parties were without legal representation. Each of them prepared documents including affidavits. On the first day of the hearing, the mother complained that she had not been provided the documents properly as required by the Family Law Rules 2004 (Cth) (“the Rules”). I asked whether she was prejudiced by that and she indicated that she had the documents because she had access to the Commonwealth Courts Portal. The father’s contravention application contained precise details of the allegations and to the extent that he had attached annexures to his affidavit, contrary to the rules, they at least gave context to his allegations. The mother took no exception to the matter proceeding. There is significance in this because the mother was quick to point out that I refused her application proceeding absent service of the annexures on the father. The accusation against the Court was lack of procedural fairness. I reject that. When an examination of her affidavit occurs compared to that of the father, the comparison is stark. He had a narrative, she did not. He did not need to produce corroboration although he did. The mother provided bundles of text messages and emails and expected the Court to find what she was referring to. Annexures are intended as corroboration; there was no narrative here. Additionally, some of the mother’s contravention allegations contained a series of dates within the one allegation. That meant the allegation was flawed by duplicity.
On the second day of what was to become three, when the mother’s application for contravention was beginning, it became apparent that not only was there no reference to any narrative in her affidavit of 28 August 2018 as to the facts of the breaches as I earlier indicated, but the father had not been served with any of the annexures either. The mother said she did not have those particular documents readily available. The bar table in the court room was littered with folders, but she said the documents were on her mobile telephone. Whilst that might have enabled the documents to be printed out, it did not give the father an opportunity to digest exactly what the evidence was that was said to support her allegations. That necessitated an adjournment. That was extremely unsatisfactory, because apart from the fact that the allegations related to incidents many months before, the mother was also pursuing issues that did not sit comfortably with some of the paragraphs of the parenting orders as will become apparent below. To compound problems, the father was about to leave for the Unites States of America.
On adjourning the contravention application of the mother (after hearing all other applications) I made the following order:
(4)The mother forthwith serve the annexures to her affidavit of 28 August 2018 on the father electronically.
The mother did not comply. She sent the annexures electronically two days before the resumed hearing. Bizarrely, and I have significant misgivings about her truthfulness given her tertiary education, she said she did not know what “forthwith” meant. The difficulty that created was that the father had to find the documents sent electronically. The mother’s obsession blinds her such that she cannot see the difficulties she creates for the Court and the father. Despite that problem, the father was able to proceed. I return to this contravention application later.
Each of the parties required the other for cross-examination. Accordingly, each of the matters requiring determination has been approached on the basis that the person making the allegation bears the onus of proof and the determination has been made on the balance of probabilities.
In respect of the mother’s applications in paragraph [12](c) and (d) above, the matters were dealt with on submissions relying upon (where it was available) the mother’s affidavit material. Submissions in this case were not particularly helpful, and I have done the best I can by way of dialogue (mostly with the mother) about what evidence supported her arguments.
In one application in a case, the mother sought a review of a registrar’s decision refusing to issue four subpoenae. I was not privy to why that was so, but in any event, I dealt with the application on a de novo basis.
No Judge had given leave to issue any subpoenae and so whatever the registrar’s decision was based upon, Chapter 15 of the Rules created a problem. The mother wanted these subpoenae issued for her contravention application, but in my view, after hearing why she saw all four of them as necessary, I am of the view that it is most unlikely that they would have advanced matters. The mother did not have a proof of evidence nor an affidavit as to the evidence she wanted to call, and in one case, she was seeking documents that she already had but felt that it was necessary to subpoena those documents from the source so that they could be used.
In respect of the witnesses whom she wanted to subpoena without filing an affidavit, she maintained that they would not give written evidence but nothing corroborated that assertion. The adjournment of the proceedings gave her the opportunity to address that problem but she repeated what she had earlier said that she had an email from the school indicating its lack of desire to be involved. However, no document to establish her assertion was tendered. More significantly, when I come to her allegations, that evidence would not have assisted because the father conceded one breach. The others of a similar nature became largely irrelevant. To be clear, I have adjourned the parenting aspect of that dispute to a date to be fixed but transferred it to the Federal Circuit Court to be consolidated with the proposed contempt and/or re-opening application of the child support dispute. The “adjournment” arises from s 70NBA(1)(a) and (b)(ii) of the Act and also s 70NEB(1)(c) of the Act. However, it must be understood that I have heard and finalised the various contraventions subject to the final step in relation to the mother who is contemplating whether she will sign a bond given to her in the terms of s 70NEC of the Act.
A further part of the application in a case sought a stay of the orders of Bennett J made on 31 July 2018[4]. Her Honour dealt with a contravention application against the mother but then the recused herself. That decision obviated the necessity for me to deal with what appeared (unnecessarily) to be a disqualification application. As the mother had appealed, there was also a stay application pending the appeal. Bennett J had declined to hear the stay application although she mentioned it in her written reasons. Having recused herself, her Honour transferred the stay application to the Case Management Judge[5]. In turn, the matter came to me in the judicial duty list.
[4][2018] FamCA 671
[5] [2018] FamCA 729
Finally, the mother’s contravention application filed 28 August 2018 contained 50 “allegations”. Many were not pressed after discussion. Several however were and of those that were pursued, some were struck out as embarrassing (in the legal sense). I shall endeavour to deal with that when I deal with those particular applications. However it soon became apparent that some (allegations 30 and 31) suffered from duplicity not to mention what I earlier mentioned about evidence.
Although my attention was drawn to the material each relied upon, it was necessary to read the various judgments of previous court determinations to make sense of any of these applications. The mother also pointed to the existence of court transcripts to establish breaches of orders by the father so I read those. There was also a need to read old affidavit material to get the context for the orders said to have been breached. I have done that for that context purpose only. The common thread throughout the judicial determination is that whilst the father has not helped the resolution of matters, the mother is the main protagonist. Whilst respectful, she was argumentative and frustrated. I found her obsessed with proving wrong-doing on the father’s part. Despite being a student of the law, her obsession clouds her objectivity.
The father’s contravention application filed 10 August 2018
The father’s contravention application filed 10 August 2018 contained five allegations asserting breaches of parenting orders made on 13 October 2015. Each related to Wednesday electronic communication with the two children. To each allegation, the mother made a denial.
The final parenting order made on 13 October 2015 has minutes attached to it indicating the parties consented to orders and relevantly, the following appears:
…
(5)Each parent do all things necessary to ensure that the children communicate with the parent that they are not with, commencing between 6.30 p.m. and 7.00 p.m. on each Wednesday, the said communication:
(5.1) To be for no more than 30 minutes;
(5.2)Shall not take place in the hearing or presence of the other parent or their family members; and
(5.3)Shall be via Skype or Facetime with each parent to do all things necessary to facilitate the children’s access.
The father’s evidence was that on 11 July 2018, prior to the scheduled telephone call, the mother sent several Skype messages with accusations about other matters. Although the annexures were not marked, what he was referring to was discernible because, contrary to the Rules, the documents were attached to his affidavit. He called the mother’s home at 6.34 pm and spoke to the children during which the mother “continued to interrupt”. He asked for privacy but he said the mother continued to interrupt the call. The call was then terminated after three minutes and 22 seconds.
Bearing in mind the mother’s denial of the breach, and absent any affidavit from her as to what this was about, her oral evidence becomes important. The mother said that on Wednesday nights (along with others) she was at lectures at in the Melbourne CBD. She said she provided electronic facilities and devices for the children and gave them directions to call the father. She gave the same directions to her partner.
The nub of the mother’s cross-examination of the father was initially along the lines that he had previously been dishonest in giving evidence both orally and by affidavit. She took him to the child support proceedings but nothing in his evidence established that he had not been truthful. The mother referred to the reasons for judgment of Judge Bender[6] relating to child support, but after reading that, I could find nothing that indicated criticism of the father. The mother cross-examined the father on the basis of having lied in the hearing before Bennett J about his awareness of the children moving schools. Careful examination of not only the father’s affidavit filed in that proceeding but also the transcript showed that the words “totally unaware” upon which the mother relied, related to the moving of the children from their first school to a second school. The father was talking about the move from the second school to a third school. Approximately 45 minutes was spent on this attack on the father’s credit and I was unable to find anything in the assertions of the mother to indicate that the father was not truthful. I insisted she move on from the attack on credit, bearing in mind the issue in this case related to whether or not she had complied with Court orders. It is helpful to remember that when the allegations were put to her, she made an absolute denial thus putting in issue the facts asserted by the father.
[6] [2016] FCCA 2856
The evidence of the mother about being at lectures on Wednesdays clashes with the father’s evidence that she was in the room and interrupting his conversation with the children. That was prohibited action under the parenting orders. The cross-examination of the father by the mother was along the lines that he had nothing to corroborate his version of evidence. Thus, it would appear to be one person’s word against another. However, the text messages certainly give an indication that there was a problem about communication with the children because they were “in the middle of having a bath”. There was considerable electronic dialogue about the “bath” and whilst it is conceivable that the mother has some electronic capacity to understand what was happening in the home at a time when she was at university, I find that her evidence was silent on that subject and any such suggestion implausible. I find that allegation proved.
A very similar situation occurred on 18 July 2018. The children initiated a call to the father at 6.25 pm to inform him that they would be unable to speak to him because they were about to take a bath. They told him they had to get off the telephone immediately and he said that the mother then entered the bathroom and ended the call after 17 minutes and 49 seconds. Again, albeit the text messages are not entirely clear, a photograph was sent at the designated time of 6.43 pm which simply shows a male’s bearded face. It was not put to the mother what that meant. Whether or not the mother was present, the communication did not occur as it should have. I find the allegation proved.
The third of the five allegations relates to 25 July 2018. The father received a telephone call at 6.27 pm from the children indicating they could not speak to him because they were about to have a bath. He asserted that the mother was in the bathroom during the telephone call and abruptly ended the conversation after five minutes and 12 seconds. When the mother put to the father that he could not “prove” she was in the room, he countered with the assertion that he heard her speaking.
I find in the circumstances on the balance of probabilities it is more likely than not that the father heard what he heard and read what he read, all of which seem to revolve around bathing of the children at a time when they should have been having the electronic communication under the orders.
One of the issues raised by the mother and which I consider irrelevant, is that there had been dialogue between the parties about changing the day of the electronic communication from the Wednesday and they negotiated about other days but ultimately, were unsuccessful. The father then insisted that the electronic communication take place on Wednesdays as required by the orders.
The words that the parties had drawn and which the court ordered, were that the mother “ensure” the communication occur. I am satisfied that the mother was present on at least two of those three occasions and that she deliberately thwarted the father’s time.
The explanation that the children were about to have a bath is not satisfactory. The issue of reasonable excuse is a consideration in contravention proceedings, and I turn to that below, but I am satisfied that that defence cannot assist the mother here because she relies on the assertion that she told the children and her partner to participate in the communication. That was inappropriate here as she left the children with her obligation.
The fourth and fifth allegations relate to 1 August 2018 and 8 August 2018. On both occasions, no communication occurred. The mother’s explanation for this was that she was at university because they were Wednesdays and that she advised the children and her partner to ensure that communication did take place. She said she had provided the relevant equipment. The course of the mother’s conduct over the period of the Wednesdays in July and August would indicate that she takes a diffident view about the importance of the father’s communication with the children.
I am satisfied on the balance of probabilities that the mother did not comply with the orders. In making that finding, it is important to note that attached to the order of October 2015 is a fact sheet drawn by the Court which sets out the legal obligations of each of the parents. One of those obligations reads:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
The order remains in force until a new parenting order or parenting plan changes it in some way.
Thus, the inconvenience to the mother by virtue of her attendance at university is also not an explanation or excuse. To the extent that the day was inconvenient or inappropriate, an application should have been made in circumstances where the mother has certainly been litigious. She did not do so.
The legal issues
Section 70NAC of the Act relevantly provides that a person is taken to have contravened an order if, and only if, where bound by the order, he or she has intentionally failed to comply with it all made no reasonable attempt to comply.
Section 70NAD of the Act provides that a parenting order that deals with a child’s communication, includes a requirement that people act in accordance with s 65NA of the Act in relation to the order and that provision makes clear that a person must not hinder or prevent the communication or interfere with the communication.
Conclusion
Whilst the mother said she was not present for the July dates, I find she was. I accept she did not facilitate the father’s time and therefore she prevented his communication.
In respect of the August days, even accepting that the mother was at university, she left the children to be responsible for the communication. She did not seek a variation, when from her perspective, the order was unworkable. These children are aged eight and 10 years and they should not have that responsibility.
A reasonable excuse?
Section 70NAE of the Act provides that a person may have a reasonable excuse for contravening an order for any number of circumstances some of which are defined in the Act. The focus of most of those stated or specific circumstances is on the belief (on reasonable grounds) that preventing the communication was necessary to protect the health or safety particularly of the children. However, the interference with the communication must be no longer than was necessary to protect that health and safety. The inference is clear from the legislation that if it is likely to be a long-term interference with the order, the person insisting on the health and safety of the children must make an application to the Court in relation to the order.
I find there is not a basis here to think that the mother did not understand the obligations she had under the order because of what she has indicated was the provision of the technology and the supervision by her partner. That ignores the fact that the order requires her to ensure the communication is facilitated. I find there is no reasonable excuse and none was indeed provided.
I find each of the five allegations proved.
Outcome on 14 November 2018
When the proceedings were adjourned, I requested the parties to turn their minds to an outcome of their respective proceedings, particularly having regard to the fact that Division 13A of the Act divides the various breaches of orders into categories of seriousness. At the hearing on 7 December 2018, I again asked each for their submissions. The mother was hard to engage because she maintained her denials and said she would appeal the “findings”. The father said he would leave it to the Court but he did not want her fined (even if the Court could) because that would impinge upon the children. He also did not want her “incarcerated”.
Subdivision E provides that in circumstances where the Court finds that the contravention has been without reasonable excuse but is less serious, the powers of the Court are then set out. Before addressing that, it is important to note that s 70NEA(1) of the Act provides that where a Court has not previously made an order imposing a sanction or taken an action in respect of contravention it may still be appropriate to treat the matter as less serious, and if so, s 70NEB of the Act applies. However, s 70NEA(4) provides that if the circumstances of the particular case satisfy the Court that the contravention was such that the parent showed a serious disregard for obligation, then Subdivision E does not apply, and Subdivision F does. That becomes an issue here because there is a pending appeal.
In Subdivision F, the Act provides that the subsection applies if the Court has previously imposed a sanction or taken action in respect of a contravention. On 31 July 2018, Bennett J found the mother had contravened the parenting orders on two occasions without reasonable excuse. Her Honour said[7]:
[7] [2018] FamCA 671
[48]Part VII – Division 13A of the Family Law Act 1975 makes distinction between serious and less serious contraventions. I would regard these as less serious contravention. That said, it is a serious case for the children and for the parents because it focusses attention on a high degree of dysfunction and a toxic level of parental conflict. However, in terms of the contraventions, I could not regard the mother’s behaviour as showing “a serious disregard for her obligations under the primary order” as required by s 70NAE(4) of the Act.
[49]Section 70NEA(2) provides that if the mother has not previously been found to have contravened an order, as is the case here, the court may impose all or any of a number consequences which are enumerated in s 70NEB. These include:-
(a)Make an order requiring either or both parents to attend a post separation parenting program;
(b)Adjourn the proceedings to allow either or both to make a parenting application to discharge, vary or suspend the primary order or other order;
(c)Require the mother to enter into a bond in accordance with s.70NEC;
(d) Impose a fine;
(e) Order that the mother pay the father’s costs.
[50]In this case a bond or a fine would pour fuel on the fire and do nothing to benefit the children. In fact, either would be likely to distance the children from the father. The mother is angry, voluble about her grievances and, in relation to her communications with the children’s school to which I will come shortly, acting outside boundaries of what is acceptable behaviour vis a vis the father and the school. The children’s interests will be best served by controlling the mother’s behaviour vis a vis the school and requiring her to attend a post separation program which hopefully can address her behaviour.
The reference in paragraph [49] of her Honour’s reasons to the provisions of s 70NEB of the Act would appear to be an error, because there is no reference in that section to a fine except in circumstances where a party declines or refuses to enter into a bond. Thus in respect of paragraph [50] of her Honour’s reasons, I propose to ignore the reference to a fine.
All of this becomes relevant because s 70 NEB of the Act only provides for a Court to require attendance at a post-separation parenting program or to require the person to enter into a bond if Subdivision E is to be applied. The other provisions in s 70NEB of the Act may be accepted as not being relevant for the purposes of the present exercise.
Of the two potential provisions, Bennett J rejected the bond as “pouring fuel on the fire” which would do nothing to benefit the children. Her Honour was left with the prospect of the post-separation parenting program which she considered appropriate to address the mother’s behaviour (see [50] of the judgment)
One of the difficulties about ordering the mother to attend a post-separation parenting course is what her Honour said in [53][8]:
…The mother has already done such a course so this next course should be selected with a view to addressing her unsatisfactory behaviour evidenced in the contravention of which I am satisfied and some behaviour which alleged but which does not constitute a contravention of an order.
[8] [2018] FamCA 671
Thus it would seem that that her Honour intended the mother to attend another program but something more targeted than the one that she had already attended. It is difficult for me to see in the present circumstances how that logic can be applied here when the “behaviour” that concerned her Honour, and which she was hopeful would be addressed by such a course, has been repeated albeit in a different form in the present proceedings. To an extent, that depends on the outcome of the appeal.
In appealing against the orders of Bennett J, and as part of the application in a case to which I earlier referred, the mother seeks a stay of the orders. The stay of the order relates to its operation, but the appeal is in respect of the order itself. Whether the order survives depends on the correctness of the findings made on the evidence. Clearly, I am not in a position to do more than look at the stay provisions to which I turn below. Having had the opportunity to read the notice of appeal[9], it would be impertinent for me to say that there is no merit in the appeal. On the assumption that the stay is granted, that is, the order is stayed, the mother fits into the category of “less serious” contraventions in relation to the present applications, but I am again left with only two options in terms of “other orders” as contemplated by s 70 NAA of the Act.
[9] Filed by with the Southern Appeals Registry in proceedings (A)SOA55 of 2018 on 3 August 2018
Unlike Bennett J, I am of the view that it is clear that the previous parenting course did not resolve the “behaviour”. That behaviour is the wife’s attitude to the father’s role in the lives of the children; a post-separation parenting course seems pointless. Certainly, the mother said that if the father attended, she would agree to go, but that proposition was put to Bennett J and was rejected on the basis that nothing her Honour had heard satisfied her that the father needed to attend such a course or that the children would benefit from him so doing.
Having rejected the parenting course, I am left with the possibility of requiring the mother to enter a bond.
Section 70NEC of the Act sets out details about the duration of bonds and whether they are to be with or without surety or security and the various conditions that can be imposed within them. They include attending counselling and family dispute resolution, but also to be of “good behaviour”. I infer that that is good behaviour in the legal sense of the phrase.
Section 70NEC of the Act does not provide assistance to the Court about the philosophy or workability of a bond. Traditionally, a common law bond was intended to defer the passing of sentence within the criminal law system directing the recipient to be of good behaviour, but also to come up for sentence if and when called upon. That is, it was a postponement of the completion of the sentencing process. It was designed to act as the metaphorical sword of Damocles over the head of the prisoner, with the Court having the power to bring the prisoner back to complete the trial process in order that the sentence may be passed (see R v Nicholson [1951] VLR 273 at [274]).
In my view, that is what the intention of the legislature was in passing s 70NEC of the Act. However, “good behaviour” must be related to compliance with the parenting orders and cannot mean that a breach of other parts of the law could amount to a breach of any bond granted by this Court. In essence therefore, the deferring of the completion of the trial of the sentence or sanction would apply. That immediately gives rise to a dilemma if the Court has already rejected the post-separation parenting program and the only other option is a bond.
A further breach of a parenting order by parent on such a bond would more likely than not place them in the “serious” contravention category contemplated by Subdivision F of Division 13A of the Act. However, that gives little comfort to a Court trying to deal with some form of sanction for the present breach. It is important to recall that the immediate proceedings are not about a breach of physical contact time under the parenting orders which could be compensated by substitute time because of the powers in s 70NEB of the Act. Paragraph (1) of the provisions in s 70NEB of the Act permits the Court to adjourn the proceedings to allow parties to apply for a further parenting orders. The dilemma that ought to be immediately apparent in this case is that the parties have been litigating for years and so the prospect of a resolution with further proceedings is daunting. That is particularly so when the parties are without legal representation, bring multiple applications, file appeals and place vague documents as evidence before the Court. In addition, there is already an extant application for variation of the 2015 parenting orders in the mother’s international relocation application and then there is her contempt application.
Despite all that gloom, I consider the only appropriate course of action here is to require the mother to enter into a bond. Her refusal to do so would then trigger s 70NEB(1)(da) of the Act which would then put her in a position that a refusal would give the Court the power to impose a fine not exceeding 10 penalty units. In my view, that is the only course open to the Court here.
When I explained that, the mother said she needed time (presumably to get advice). I have given her the bond and made an order that it be executed in front of a registrar by 4.00 pm on Friday 14 December 2018. If it is not, the mother must then return for the completion of the “sentencing” process.
The mother’s application in a case filed 7 September 2018
Although not next in time, the mother wanted this application in a case dealt with because it included a review of a registrar’s decision about subpoenae that were said to be relevant to the contravention application she filed on 28 August 2018. It is doubtful whether the registrar’s decision was an order; in my view it was an administrative decision. In any event, if the mother had requested permission for the subpoenae to be issued through an application in a case (as now filed) I would have (and will now) dismiss it.
Four subpoenae
The first of four subpoenae rejected by a registrar on 3 September 2018 would have required the vice principal and a teacher of the Suburb K primary school to attend to give evidence. Two immediate problems arise. No evidence in chief by affidavit or even a proof of evidence was provided by the mother. As I have already mentioned, the mother said, but produced no evidence, that the school would not provide anything in writing.
The question of the issuing of a subpoenae to give evidence, contained in ch 15 of the Rules, can be confusing. Rule 15.17(3A) of the Rules provides that a party must not request the issue of a subpoena for production of documents, as well as to give evidence, if the production would be sufficient in the circumstances. In addition, the registrar will only issue a subpoenae if the Court has granted permission. The note to the rule says that a request for permission should generally be made at a Court event, but that must not be read as exclusively so.
In this case, no explanation was given at the time of the request why an affidavit was not sought and in addition, leave was not sought from the Court to issue the subpoenae. Doing the best I can, it would seem that the subpoenae were left for the registrar to consider and were rejected accordingly. As this is a review of the decision of the registrar, I would independently not agree to the issue of the subpoena on the basis that it is unclear why the school would not participate voluntarily, and what evidence, if any, the principal could give. The events were said to have occurred over three years ago. Most importantly, and I shall return to this below, I have concerns that this all relates to an allegation of the mother that I consider is an abuse of process. The mother has not satisfied me as to the issue of relevance. I agree with the registrar’s decisions and without more, would not authorise the issue of the subpoenae.
The second subpoena sought to be issued by the mother was to Mr M who is an accountant. She wanted him to give evidence and produce documents for what she described as allegations of contraventions and contempt of court during Federal Circuit Court hearings.
Similar to the last allegation, no proof of evidence was sought, and the same reasons just mentioned apply. However, this also relates to proceedings in the Federal Circuit Court relating to child support. This, and the third subpoena, were solely an attack on the father’s credit because the substantive issue has been determined.
Normally, credibility evidence about a witness is not admissible[10]. Credibility evidence may be evidence that is relevant, only because it affects the assessment of the credibility of the witness[11].
[10] See s 105 of the Evidence Act 1995 (Cth)
[11] See s 101A of the Evidence Act 1995 (Cth)
Contravention applications are brought within the enforcement provisions of Division 13A, which is found in Part VII of the Act. Section 69ZT of the Act provides that the credibility provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) do not apply to child-related proceedings. A number of other provisions of the Evidence Act are also excluded, although s 26 of the Evidence Act is not in that category and provides that the Court can make such orders as it considers just in relation to the way in which witnesses are to be questioned, and that undoubtedly includes an attack on the credit of a witness although the focus must be on the facts of the allegation first to point to the relevance of credit. If truthfulness is in issue, credit may be relevant but there is a limit to how far assertions can be taken, of past and unrelated untruthfulness.
The removal of the admissibility provisions of ss 101A and 102 of the Evidence Act are designed to give the Court flexibility in a parenting matter, so that it ultimately is able to determine the best interests of children without being caught up in technical admissibility issues. Thus, there must be a limit to the extent of the evidence in a contravention application because whilst the provisions of the best interests of children are relevant, the primary focus is on why the orders are said not to have been working and if so, how that can be rectified. In other words, there cannot be an unlimited licence for parties to lead evidence and cross-examine each other in respect of just about anything such as matters relating to credit. There are also two reasons for that. The first is that s69ZW(1) of the Act mandates a number of matters, including that the Court has control over the proceedings and decides which issues require full investigation and hearing, but also deciding what particular step in the proceedings is to be taken and in so doing, to consider whether there are likely benefits involved in justifying the costs of that step being taken. That focus is not just on the costs to the parties, both financially and psychologically, but also to the resources of the Court. The focus of the mother is on justice as she sees it. The father’s allegations relate to events that clearly show the orders are not working. The Court needs to re-assess that concept and decide whether other orders better suit the children. The mother’s allegations have no child-focus; they relate to events of as much as three years ago. There is no benefit to the children in that exercise.
In this case, to allow an unlimited attack by the mother on the issue of the credit of the father which underpins for her seeking to issue the subpoenae, must be seen as very doubtful. In part, that arises because of ss 55 and 56 of the Evidence Act. Section 69ZT of the Act does not remove those two provisions. Section 55(2)(a) of the Evidence Act makes clear that what is relevant evidence is that which if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue and that the credibility of a witness is not to be taken to be irrelevant per se.
Credibility of the witness will only affect the assessment of the probability of the existence of a fact in issue if it can rationally affect the testimony bearing in mind what needs to be established. In a contravention application therefore, as here, the mother must establish that the witness that she proposes to call will give evidence that is likely to affect the probability that the father did or did not breach a Court order.
It cannot be assumed that the father, who may not have been truthful in respect of financial matters would therefore be untruthful in respect of a parenting matter. To authorise the issue of a subpoena, whilst the bar is relatively low, the mother must show that the evidence she proposes to call (whether relating to credibility or otherwise) will probably affect the parenting matter. None of that was put before the registrar, and nothing was put to me. Indeed, I have the benefit of hindsight here because the mother cross-examined the father for 45 minutes solely on credit, referring specifically to court transcript and documents and none of it established what she asserted it would.
There is also the question of the appeal pending in which the mother has sought an application within an appeal to endeavour to apparently obtain leave to appeal out of time[12]. I find there is no apparent connection between the past evidentiary events and the present contravention application, and as such, to issue a subpoena as sought by the wife would be an abuse of the process of this Court, having regard to the amount of time that has passed since that hearing in November 2016. I therefore refuse leave to issue that subpoenae.
[12] Application in an Appeal filed by the wife on 25 October 2018 in proceedings (A)SOA103/2016
The third subpoenae was addressed to the father’s wife. The application in a case indicated that she wanted the father’s wife to give evidence for “contravention allegations to parental alienation, denigration and contravention of orders made on 8 May 2018”. Unlike the registrar who rejected the subpoena and in my view, correctly so without any cogent evidence as to relevance, I have had the advantage of hearing submissions from the mother, and indeed, hearing her cross-examination as I have already indicated.
Rule 15.18(a) of the Rules provides that the Court must not issue a subpoena at the request of a self-represented party without permission from a registrar. Although the rule does not go further and explain why that permission is necessary, it is clear that in circumstances where the litigant seeks a witness to give evidence (as distinct from producing a document) that evidence must be admissible. Such a litigant therefore needs to justify the relevance of the evidence in terms of ss 55 and 56 of the Evidence Act because the evidence would otherwise not be seen to be relevant.
This case is a good example of a litigant who is self-represented desiring to call evidence which she anticipates might be given, but in reality, it has all the appearance of a desire to simply cross-examine that person. Whilst hoping that cross-examination will elicit the answers she wants, that of itself cannot establish relevance for admissibility purposes. Accordingly, the registrar was again correct. To the extent that the mother, as a self-represented person, maintains some ignorance of process, I reject that, having regard to her constant reference to Rules, procedural fairness and insistence that she is right. The mother failed to produce any evidence to the registrar, and so the decision of the registrar was correct, but before me, no argument was put to show that the father’s wife would establish that the contraventions alleged by the mother occurred. What exposes the obsession, which I earlier mentioned, was the reference to “parent alienation and denigration”. There is no alleged breach relating to those matters. The orders made on 8 May 2018 relate to the collection of the children from school. Without some indication as to the nature of the evidence to be called, I reject the subpoena on the basis that the mother has not established relevance.
The fourth subpoena which was refused by the registrar was directed to the Administrative Appeals Tribunal (“the AAT”) for the production of documents arising out of a Child Support Agency decision on 14 June 2018. Although the application in a case refers to an allegation by the mother of contravention and contempt of court, it again relates to the child support hearing in the Federal Circuit Court. When I pressed the mother as to why she needed the documents, she told the Court that she already had them. She thought that she needed the documents to come from the AAT.
Rule 15.34 of the Rules makes reference to a party seeking the production of documents from another court. There is no definition in the dictionary of the Rules other than the one that refers to a court having jurisdiction under the Act, but I see no reason why the reference to “another court” in r 15.34 of the Rules should not refer a tribunal which is protected by the principle of independence from government. Because of the principle of comity between courts, r 15.34 sets out what the mother should have done, and she did not.
In the circumstances, the registrar would have been obliged to refuse the subpoena because of r 15.34 of the Rules. Had the registry manager been approached and asked my views about whether the document should be sought, I would have insisted that much more detail be provided. The documents were not only already in her possession but presumably also in the possession of the father. Misguided or otherwise, that was an inappropriate way to deal with the issue.
The application to review the registrar’s decision to decline to issue the subpoenae is therefore dismissed. To the extent that the application in a case can be seen as a fresh application based on proper material to issue such subpoenae, I formally refuse for the reasons outlined above.
Enforcement of financial parenting orders
In her application in a case, the mother sought to pursue payment of money from the father.
Paragraph [8] of the order made on 26 June 2014 in the Federal Circuit Court set out the obligations of the father. Part of that order was then suspended by an order made by Judge Bender on 13 October 2015 and it remains suspended. The mother’s complaint seems to be that there were arrears. This relates to medical, dental and health fees.
The mother’s evidence was contained in paragraphs [18] onwards of her affidavit filed 7 September 2018. When I asked about the precise nature of the orders sought, the mother said that there was some difficulty with establishing the quantum of her claim because there had been some payments made. She suggested that one solution was to adjourn the proceedings and ultimately, for other reasons, she achieved that. Time did not rectify the problem. In her evidence, the mother made reference to the fact that this complaint had been raised before Bennett J, and an examination of the transcript shows it was. Unfortunately, it was not resolved. Whatever is the situation, there is not sufficient evidence before the Court to call upon the father to answer the allegation as there is still no specific quantum pleaded. That allegation is therefore struck out.
A family report?
Another order pursued by the mother’s application related to the Court ordering a family report.
On 20 July 2018, a registrar dismissed the mother’s request for a family report by Ms N. Apparently, Ms N had undertaken a previous report in October 2015.
I observed that the family report could only be relevant to the issue of the substantive parenting case, and as Johns J as Case Management Judge had refused to expedite that hearing[13] (unsurprisingly with all of the interlocutory applications still outstanding), the trial of this matter is a considerable period away. The purpose of the family report is to give expert advice to the Court[14] and as there is no present hearing pending in the immediate future, I see no reason why an order should now be made. To the extent that the parties desire to get some professional assistance as to how to resolve their parenting dispute, they are obviously encouraged to speak to some experts such as Ms N. Accordingly, I would dismiss that application.
[13] [2018] FamCA 496
[14] See s11A of the Act
Orders for case management
The mother sought orders for case management of all extant applications to be listed with the final substantive trial in which she seeks permission to relocate the children to the United States of America.
In her evidence to support the granting of this relief, the mother said that she wanted all applications to be heard in one trial in order to bring all litigation to an end for the best interest and sense of certainty for the children. The father disagreed. It is not at all clear from any of the documents I have endeavoured to read just what the issue is that would justify a reopening of the 2015 orders to allow the children to relocate the United States of America.
I understand from reading the transcript of the hearing before Bennett J that the wife had committed herself to employment in the United States of America. I do not know whether that was presumptuous on her part, but she told Bennett J she would have to renegotiate it. I therefore do not know her current circumstances other than that she is a law student.
To cloud the issue with a whole raft of other interlocutory issues having regard to the way the mother has conducted the litigation thus far, would be contrary to ch 1 of the Rules about trying to identify issues, let alone contemplating the obligations that a trial Judge has under Division 12A of the Act.
It is the policy of this Court to refrain from setting a matter down for final hearing where there are a whole raft of interlocutory or interim applications, particularly contravention applications, and in my view, that is exactly the problem here. The application for an expedited trial has already been refused. The mother has been warned by the Case Management Judge, as well as by me about constant applications particularly those which are historical. When I turn to her contravention application below, it will be seen how there is an insistence that every issue be litigated rather than dealing with the substantive parenting dispute. In my view, it would not be appropriate to make orders to consolidate all of those interlocutory issues which would cloud and extend the ultimate trial, and hence, I am dealing with them now.
Vexatious proceeding order
The final order that the mother sought in this application in a case was that the father be declared vexatious pursuant to s 102QB of the Act. Despite the fact that the mother said that she was a law student, it appears that she did not understand, nor had she researched, what was needed to be established. However in her evidence, she said that the registrar had cautioned her on 2 May 2018 that any application for contravention would delay the listing of the trial of the substantive issue. In other words, the registrar warned the parties as I have just mentioned.
The mother now seeks to have the father declared vexatious because he filed a contravention application on 9 May 2018. That is, after the registrar’s warning which was to both parties. That could not alone give rise to such an order under s 102 QB of the Act. In any event, as is apparent, Bennett J found the mother had contravened the orders[15]. Whether the Full Court agrees is a different matter.
[15] [2018] FamCA 671
Section 102QB of the Act provides that the Court must be satisfied that “a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals”[16]. The only evidence that the mother led related to the contravention application filed on 9 May 2018 and then the subsequent contravention application filed on 10 August 2018. In respect of the second, the allegations were recent and I have found that the mother breached the orders.
[16] Section 102QB(1)(a) of the Act
In my view, the mother could not satisfy s 102QB(1) of the Act on the basis of that evidence to show frequently instituted proceedings let alone having taken a vexatious approach. Her application fails.
The mother’s application in a case filed 28 August 2018
In an amended application in a case filed on 28 August 2018, the mother sought 11 orders. Seven of those were not pressed. I deal with those that were pressed now.
The first relates to a stay of orders made by Bennett J on 31 July 2018. The Rules of the Court normally require that pending an appeal, any stay application be made before the Judge who heard the matter, or if that Judge is not available, another. In this case, I am conscious of the fact that Bennett J recused herself and then referred all outstanding matters to the Case Management Judge. In turn, the matter was transferred to me. I therefore propose to deal with the stay application pending the appeal in the usual way.
All of the orders of 31 July 2018 were said to be the subject of the stay application, but some of those orders are no longer relevant. That is because Bennett J made an order under s 11 F of the Act for a specific attendance on 26 September 2018. However, on 29 August 2018, her Honour made an order that the Independent Children’s Lawyer inform the parties whether she considered it to be in the best interest of the children for that assessment to proceed. Leaving aside the question of the delegation of power, it seemed common ground between the father and the mother that as the time had now passed and no one had taken up the obligations under the July order, it was unnecessary to do anything further about it. Nothing I heard from the father indicated that he wanted to proceed with that order. I propose to ignore that accordingly.
Another order sought to be stayed was her Honour’s order that the registrar send a copy of the orders to a variety of schools, but that had apparently already been implemented.
It seems that the focus of the mother’s attention was on the following orders and those are the ones to which my attention will now turn:
(7)Pursuant to s 70 NEB (1) (a) (i) by way of penalty for the mother’s contravention of the Primary Order the mother attend a post-separation parenting program at an advanced level and be in a position to prove compliance with this Order.
(8)The mother be and is hereby restrained by injunction from writing or in any way communicating with the Proper Officer of any school, organisation or activity in which the children [X] born … 2008 and [Y] born … 2010 are, or have been enrolled, in terms which are denigrating, belittling or insulting of the father or any member of the father’s household.
…
(20)The parties be and are hereby restrained from making any complaint to a professional body or association concerning the conduct of any Single Expert engaged for the purpose of this proceeding, or permitting any other person to do so, without first obtaining leave of the Court. This injunction will remain in full force and effect following completion of the proceedings.
Although the appeal by the mother also appears to be in relation to what is described as paragraph (6) of the orders of Bennett J, that is a finding and not an order. The notice of appeal filed on 3 August 2018 purports to appeal against all orders and those included matters relating to the children living with the father during August and September 2018 in the absence of the mother overseas. It is only when the grounds of appeal are examined that it seems that the focus of the mother’s attention is really on the contraventions. I propose to deal with the stay application on that basis.
The application in a case to which my attention was drawn was marked “amended”, but the affidavit relied upon had supported the earlier application in a case. Although that was not drawn to my attention at the hearing on 13 November 2018, I found it on the Court file. It was filed on 7 August 2018. In essence, although mostly made up of conclusions and opinions rather than facts, the affidavit said that the orders of 31 July 2018 were “designed” to deny the mother procedural fairness in relation to meeting the family consultant for the preparation of an assessment under s 11F of the Act “with the disclosure and publication or otherwise, of prejudicial and biased information, decisions and judgments, that were made on erroneous, unjust, unfair and inequitable determinations and judgments in law”[17]. That assertion was directed to the order that has now been overcome by the effluxion of time, but the statement underpins most of the basis put by the mother for the stay order. What she told the Court on 13 November was that if she attended such a meeting, it would amount to an admission against her interests in circumstances where she had the appeal pending.
[17]par [4] of the affidavit of the mother, sworn and filed on 7 August 2018
The affidavit went on to say that the orders were “designed” to deny her procedural fairness in respect of her international relocation application. At the hearing on 13 November 2018, she explained that to mean that the father had lodged these various applications as a delaying tactic, knowing that a final hearing would not be commenced by the Court when there were outstanding interim or interlocutory applications. I reject that having regard to the findings on the father’s contravention application.
The affidavit then went further to say that Bennett J had made errors in failing to consider the hardship to the children, although that assertion is not supported by any fact. Despite that, the gravamen of paragraph [6] of the affidavit was directed to a specific claim that Bennett J should recuse herself and her Honour ultimately made that order.
The affidavit seems to suggest that the “judicial prejudice and bias” and the lack of “judicial impartiality by having made references to inadmissible evidence” in relation to the father’s contravention application against her, were fundamental to her appeal.
The notice of appeal could best be described as convoluted. It refers to a number of orders with which I am no longer dealing so I shall only endeavour to address those that are relevant.
The ground of appeal in respect of order (7) is an assertion that her Honour erred in law in failing to consider all relevant and critical factors for reasonable excuses in relation to the health and safety of the children.
Order (7) required that the mother to attend a post-separation parenting program “at an advanced level”. That order arises out of only one allegation proved by the father. It related to 2 events in April 2016 and October 2016 respectively, relating to the mother’s change of school. Her Honour drew attention to the fact that paragraph (16)(b) of the parenting order was an injunction precluding each party from changing the school of the children “without the consent in writing of the other”. Her Honour noted that it was conceded by the mother that she did not ask the father about which of the two private schools he would select. Her Honour said, on the evidence, that the mother did not give the father any prior notice of the children commencing at the private school from the commencement of term 2016. Her Honour noted there was no allegation about health and safety in respect of the children when they were enrolled at this new school, and she found that the mother took no steps to inform the father that the change of school was even going to occur. Significantly, the mother told her Honour that was “too hard or impossible” to ask the father in any communication form. Her Honour rejected that. Accordingly, her Honour found that not only had the order been breached, but that the mother had no reasonable excuse.
Order (8) restrained the mother by injunction from communicating with the school in terms that denigrated, belittled or insulted the father or his household.
The grounds of appeal show that the assertion of error by her Honour was:
…Procedural Ultra Vires and improper and abuses of processes and procedures pursuant to the Family Law Act 1975 and the Family Law Rules 2004. The Allegations were dismissed and struck out.[18]
Frankly, I have no idea what that means. No doubt when the matter reaches the Full Court, the mother will clarify it.
[18] Ground 5 in the Notice of Appeal filed in (A)SOA55 of 2018 on 3 August 2018
In respect of order (8), Bennett J dealt with this issue arising from the powers of the Court under s 70NBA of the Act to vary parenting orders upon the completion of the contravention application. At [74] of the reasons for judgment[19], Bennett J referred to an email sent by the mother to the school indicating that the children were the subject of Court proceedings and she requested that all persons collecting the children be required to make their attendance known to the reception staff prior to collection. She told the Court that in the event of a breach of the Court orders, the school was to contact the police to “secure the welfare and safety of the children”. Her Honour then referred to other correspondence which appears to be directed to the same issue. Her Honour said at [73]:
I am satisfied that, unless some structure is imposed on the parents in relation to the care of the children during the mother’s absence, the mother will continue to issue missives to the school and the father and, potentially, medical and like professionals. She will, in effect, seek to pull the strings from overseas. Communication to achieve a desired result is one thing. However the tone of the mother’s emails to the school are quite another.
[19] [2018] FamCA 671
Her Honour then described the mother’s reference to family violence proceedings as unnecessary and designed to embarrass the father. All of that gave rise to order (8).
Whilst immediately recognising that the Court is at large once Part VII of the Act is activated, doing the best I can, I have been unable to ascertain whether this was an order that the father sought or indeed was given an opportunity to comment upon but the court transcript shows that her Honour asked the mother whether she had an “objection” and the mother replied that she did not. How that fits with ground (5) of the wife’s notice of appeal is mystifying, but no doubt at the appeal directions hearing, it will be clarified.
Combined with the mother’s assertion of judicial bias and procedural unfairness (which I am unable to discern) it may be that the mother had some basis to complain in the terms that she has set out in her grounds of appeal This discussion relates to whether or not there is any merit in the appeal for the purposes of determining whether the discretion should be exercised in respect of the stay.
Order (20) was an injunction restraining both parties from making any complaint to a professional body about any single expert engaged for the purpose of the proceeding. Like the last issue, I have done the best I can in endeavouring to find amongst a plethora of documents where this came from. As I have already observed, the father only had a contravention application before the Court and the reasons do not indicate what position he adopted once her Honour had concluded the contravention application and triggered s 70NBA of the Act. Nothing in the reasons of Bennett J gives me any indication of what her Honour had in mind. The notice of appeal does not specifically refer to order (20) as part of the grounds and the stream of consciousness in that document gives no indication of what the mother was asserting. All I can discern is that the mother asserted that she was appealing against all orders and that must include order (20).
The father filed no material in response to the present application in a case and his only application before the Court on 13 November 2018 was his contravention application In addition, he did not seem interested in making submissions in respect of these matters. He conceded for example, the meeting with the family consultant was not urgent.
The principles to be applied in stay applications pending appeal are well settled and there are a number of authorities to which attention could be drawn. For example, in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court noted that the matters that were relevant were as follows:
a)The onus to establish a proper basis for the stay is on the applicant but it is not necessary for the applicant to demonstrate any special or exceptional circumstances;
b)A person who has obtained a judgment is entitled to the benefit of that judgment;
c)A person who has obtained a judgment is entitled to presume the judgment is correct;
d)The filing an appeal is insufficient to grant a stay;
e)The bona fides of the applicant may give rise to consideration as to whether the discretion should be exercised on terms including in those circumstances, weighing the balance of convenience and the competing rights of the parties;
f)Weighing the risk that an appeal may be rendered nugatory if the stay is not granted; and
g)The preliminary assessment of the strength of the proposed appeal as to whether the appellant has an arguable case and the period of time in which the appeal can be heard and whether existing arrangements are satisfactory.
The refusal of the stay here would not render the appeal nugatory. I reject any suggestion that complying with any order (albeit the applicant was referring to the attendances upon the family consultant) would amount to an admission contrary to her interests. The order was made and the only question is whether procedural fairness was given to the mother. Whilst the Court is entitled to take into account that relevantly here, the father may presume that the judgment is correct, he was silent on the subject. I am therefore unable to say whether he was concerned about the order, bearing in mind that order (20) restrains him as much as it does the mother and he has not complained by way of an appeal. That said, it is unclear to me what the basis of the order was.
In respect of the requirement that the mother attend a post-separation parenting program, I have already made comment earlier about the limitations on the powers of the Court to make orders and especially so in this case, where it would seem there had already been an attendance by the mother at a post-separation parenting program. Thus, in assessing the merits of any appeal, I can only look at the material provided by the mother taking into account the father has remained silent. The mother’s stream of consciousness makes it difficult to understand exactly what, if any, errors Bennett J made, particular taking into account the highly discretionary nature of not only the determination of the contravention, but also the general powers to make parenting orders.
Ultimately, the balance of convenience suggests that it might be better if the orders are stayed pending an appeal, because if there is a repetition of the abusive nature of the text or email messages to the school, rather than the Court taking a proactive part, the father can deal with that issue himself. Whilst I hesitate to comment on the sanction for the breach of the order which her Honour seemed to think had been conceded without reasonable excuse, it might be better if that order also remains stayed. It seems to serve no purpose when not only there had been a previous post-separation parenting program but subsequent to the hearing before Bennett J, the mother’s attitude towards the father seems to have continued unabated anyway. That can be seen in her ambivalent approach to the communication orders during the period of August 2018 alone.
Accordingly, I shall stay orders numbered (7), (8) and (20) of the orders made on 31 July 2018 pending the ultimate determination by judgment of the mother’s appeal filed 3 August 2018. The mother’s application in a case filed on 7 August 2018, as amended on 29 August 2018 is otherwise dismissed.
The mother’s contravention applications filed 28 August 2018 and 1 November 2018.
These applications were the subject of the adjournment because the details of the evidence relied upon by the mother in respect of the allegations had not been served upon the father. Of those, some could not be allowed to proceed on the basis that they could not succeed for the reasons that follow.
What was the mother proceeding with?
The mother indicated that she was pressing allegations (2), (22), (30), (31), (34), (42), (43), (44) and (45) of the contravention application filed 28 August 2018, and the one count in the application filed 1 November 2018.
Allegations struck out
Of those that the mother wanted to press, allegation (34) related to order (2) of parenting orders made on 8 May 2018. The allegation as presented by the mother is convoluted, but the order itself reads that the father could provide to the school certain information. As such, no order could be breached unless there was an obligation. No obligation is apparent. Allegation (34) was then struck out on the basis that it was not an order that could be breached.
Allegation (43) relates to orders of Judge Bender made on 7 December 2015. It relates specifically to a direction that in anticipation of the child support hearing, the father file documents. The allegation is that the father failed to comply with the direction, yet the hearing proceeded before Judge Bender. Whatever position the mother took in relation to the late, or non-filing, by the father, she proceeded with the application. This issue also seems to be the subject of the application in an appeal to extend time to appeal against the orders, based upon the fact that the father did not make proper disclosure. This allegation arises out of something that is over two years old and where the hearing proceeded. I consider this part of the contravention application an abuse of process. Even if I could make some finding (which I cannot), any such finding could have no possible practical utility. The only time the contrary could be said to be true would be if either the Full Court gave leave out of time to appeal against the orders of Judge Bender, or alternatively, as the mother now foreshadows, a further application is made to her Honour to reopen the hearing on the basis of a miscarriage of justice. If the Full Court gave leave to appeal out of time and found some substance in the appeal, and Strickland J has refused that, it would seem almost certain that the matter would be remitted for retrial before the Federal Circuit Court on the basis of some not-readily apparent error. The mother has her remedies in respect of the complaint and in my view, it is not before this Court. I consider the allegation an abuse of process and accordingly, it is struck out.
Allegation (45) does not relate to any specific order. Doing the best I can with the allegation, the mother refers to the father’s “sworn undertakings” to disclose documents. The allegation is that the father filed “incomplete disclosures and/or suppression of financial disclosure evidence”. It remains unclear what the basis is upon which the Court could do anything, even if the allegation was established. Rule 13.15 of the Rules provides that a breach of an undertaking may amount to a contempt of Court, but that is not the application brought here. The hearing to which this particular allegation relates was in the Federal Circuit Court and presumably r 16.06 of the Federal Circuit Court Rules 2001 (Cth) applies. Again, looking at that rule, it is unclear what the breach is but in any event, if it is asserted that it was some form of contempt, it cannot be dealt with in the form that the applicant presents. In my view, not only having regard to those matters but more particularly, the time that has elapsed, this allegation too is an abuse of process and should be struck out.
The remaining counts
The remaining counts in the mother’s contravention application filed 28 August 2018 are allegations (2), (22), (30), (31) and (42). However, on 7 December 2018, allegations (2) and (42) were withdrawn by the mother. Allegation (22) was then conceded and admitted by the father. That leaves allegations (30) and (31).
Bearing in mind that the initial contravention application contained 50 allegations, this approach of the mother brings to mind the words of Ryan J in Walters & Carson [2017] FamCAFC 128, in an application in an appeal heard by her Honour as a single Judge where she said at [34]:
The grounds of the application for leave to appeal appear to raise matters of some substance and there may be some substance in the grounds of appeal but if there is substance, the white noise of approximately 97 grounds has tended to mask their strength.
Before Bennett J, her Honour complained that there was an appearance of the parties relishing litigation. Having now trawled through all of these documents, I can understand her Honour’s frustration. The particular documents I am dealing with here go back a number of years and it is self-evident that the mother has gone back through many hearings and documents to raise complaints that could be raised against the father. Rather than her having established, as she alleged, that the father was delaying the substantive application for parenting relief in the form of the international relocation issue, the mother has required the Court to spend considerable resources endeavouring to find the substance of her complaints. This case has all the hallmarks of what the High Court of Australia was referring to in Neil v Nott [1994] HCA 23; 68 ALJR 509; 121 ALR 148.
In this case, it is a consequence of the mother’s self-representation that the Court has to assume the burden of endeavouring to ascertain the rights of both parties because of the obfuscation particularly by her in her own presentation of material. That exercise occurs to the prejudice of other litigants and for the reasons just earlier mentioned, may be a basis to consider s 102QB of the Act if the mother persists.
Allegation (22)
Allegation (22) relates to order (4) of the orders made on 9 November 2016[20]. The mother asserted that the father, without reasonable excuse, had refused to comply with the Federal Circuit Court enforcement orders. She cited paragraph (4) of those orders. Order (4) of the relevant orders provided that upon the mother providing the father with receipts for the total payment of expenses which were then set out, he had to pay her $527.16. The father has paid the amount but not quickly enough for the mother. I consider this allegation trifling because the father thought it could be off-set against what he was owed by the mother. His delay was unfortunate but the debt has been paid.
[20] [2016] FCCA 2856
Allegation (30)
Allegation (30) relates to paragraph (5) of two orders of the Federal Circuit Court. The first relates to 26 June 2014 and the second 13 October 2015. It asserts that on 11 days over a period between 9 December 2015 and 4 July 2018, the father had, without reasonable excuse, restricted her electronic communication with the children.
Although allegation (30) indeed is 11 separate allegations and should have been pleaded as such, the father took no exception to the way the matter was set out. The adjournment of the proceedings after 13 November 2018 gave him an opportunity to see exactly what the factual basis was for those allegations. On the return date, he maintained that he had not breached the orders.
The first problem is that order (5) of the orders of 26 June 2014 provides for an injunction relating to “inappropriate computer games, tv or youtube productions that are not child appropriate or inappropriate computer websites”. It does not relate to the Skype issue. The order of 13 October 2015 is the pertinent one. It provides that each parent is to do all things necessary to ensure the children communicate with the other parent on each Wednesday. I have already set out the details earlier in these reasons in the section concerning the contravention application that the father brought against the mother.
This allegation however, contains many dates not one. There is no narrative in the affidavit. I consider it to be 11 counts. The absence of evidence in narrative form makes allegation (30) impossible for the Court to put as one breach, and even though the father denied it, I did not understand what evidence supported the allegation. The allegation is therefore duplicitous and was struck out.
Allegation (31)
Allegation (31) is identical to allegation (30), save that it alleges 14 dates, but relying on the same orders, and my same observations apply. It was struck out.
The allegation in the contravention application filed 1 November 2018
By her application filed 1 November 2018, the mother alleged that the father had breached order (1)(a) of the orders made on 8 May 2018 in that he had failed to inform the school who would be collecting the children if it was not himself. To that allegation, the father agreed that he had not done so, volunteering that he had overlooked the matter.
Order (1) of the orders made on 8 May 2018 was by consent of the parties. In her affidavit, which the father did not challenge, the mother said that she had made an application in April 2018 for both parties to comply with the ‘‘Legislative Rules of the Victorian State Government Education Department Policies (sic) for after-school collection of children”.[21]
[21] par [4] of the affidavit of the mother, sworn on 31 October 2018 and filed on 1 November 2018
The mother’s evidence was that the immediate application was the result of “many years” of the father’s “delinquency” in relation to his fortnightly visits. She said that he lacked insight into the children’s distress and gave an example that on numerous past occasions he had sent Uber drivers to collect the children without notification to the school. She said the children had told her of their fears and distress, and would cry when recounting events after they returned home on the Sunday following the Friday when these events had occurred. She said they referred to “strange men” taking them to different cars. That had all lead to the orders of 8 May 2018.
The mother made reference to the judgment of Bennett J on 31 July, in which her Honour appeared to be critical of the mother’s approach about this issue. I am also unsure why that evidence was necessary.
The mother said that the school had contacted her enquiring who was picking up the children who had been left alone in the playground.
The father’s submission in relation to this particular issue was that it was an oversight and it would appear that was the case as this was the only allegation subsequent to May 2018. This is the first time any such breach has been established and I consider that the explanation of the father should be accepted.
Section 70NAE of the Act provides that the circumstances in which a person may have been taken to have had a reasonable excuse for contravening an order are not limited to the circumstances given by the section, and providing the Court is satisfied that the respondent ought to be excused in respect of the contravention, the provisions of s 70NAE(2) of the Act can be applied. The father will now understand that not only did the Court make the parenting order, but he consented to it and therefore, its provisions have to be obeyed. It is not suggested that he did not understand those obligations. Section 70NAE(1) of the Act gives the Court a wide discretion as to what is a “reasonable excuse” and I am prepared to accept what the father says as being reasonable.
The mother had an opportunity during the adjournment period to obtain an affidavit from the school to corroborate her evidence that the school principal was “frantic”. No such evidence was forthcoming. I do not accept that a subpoena in the circumstances would have resolved the issue. The school had been made aware of the orders and involvement of the Court particularly after the orders of Bennett J. A subpoena to make the school give evidence would have involved the school unnecessarily. Both parents have responsibilities for these children and it is not suggested that the school was not aware of the existence of the father. There is no suggestion in the evidence the school contacted the father concerned about the children being left in the schoolyard.
On the scale of seriousness, notwithstanding the mother’s position that this is a health and safety issue for the children, I find that the matter is such that it does not warrant further intervention by the Court. I am fortified by that position in the sense that the mother did not bring an application to discharge the father’s responsibility under the parenting orders to collect the children from school.
In my view this is a case where the contravention should be excused and the allegation should be formally dismissed.
Conclusion
I have already set out the outcome for the breaches alleged by the father. I have found each of his allegations proved. I have found that the appropriate course of action is to ask the mother to enter into a bond. I have explained to her its ramifications and her obligations. I need say no more about that.
In respect of the allegations of the mother against the father, the only matters that were proved were those that the father admitted. In respect of each of those matters, I find they are trifling in the context in which they occurred leaving aside questions of when they occurred. In discussion, the father conceded that the issue associated with the notification to the school as to who will be picking up the children would not happen again and indeed, he asked that that matter be adjourned to enable him to bring an application to vary the order. In my view that is an appropriate course in the circumstances.
Finally, the power of the Court to adjourn proceedings to enable further applications to be made becomes complicated by virtue of two different courts having jurisdiction. It seems to me fundamental in this case that the Federal Circuit Court of Australia deal with all of these issues, predominantly because they arise out of parenting orders made in that court and the fact that the mother has indicated she is now going to bring a contempt application against the father arising out of the child support orders made by Judge Bender in 2016.
The legislation seems to contemplate that such an outcome can only apply once the contravention applications are concluded. There would be no logical reason why the contravention application in those circumstances would be resumed even if no such application for variation of the parenting orders applied. Thus, effectively what I am doing is adjourning the parenting proceedings as I have earlier described them so that they can then be transferred to the Federal Circuit Court of Australia to try and consolidate all of the parties’ outstanding disputes.
For the record therefore, what is to be before Federal Circuit Court of Australia is only whatever proceedings the mother now brings and the anticipated proceedings of the father relating to discharging the order that he notify the school each time the children are to be collected as to who that person collecting the children will be.
In my view, the Court has done the best it can having regard to the way the litigation was conducted particularly by the mother and to the extent that this Court retains any jurisdiction, it can only be in relation to any refusal by her to enter into a bond. If that occurs, I shall deal with the matter as soon as I am able to do so.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 December 2018.
Acting Associate:
Date: 12 December 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Appeal
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Breach
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Stay of Proceedings
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Jurisdiction
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