Peake & Cousins (No 2)
[2019] FamCAFC 95
•4 June 2019
FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS (NO. 2) | [2019] FamCAFC 95 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript by the Court – Where the Court may, in its exercise of discretion, agree to provide transcripts of relevant parts of evidence for use in an appeal – Where such discretion is only exercised in exceptional cases – Where Sampson & Hartnett (Provisions of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 is considered – Where the appellant mother seeks that the Court carry the cost of providing the full transcript because of “financial stress” – Where the respondent agrees to the application in part – Where the Court considers the necessity of all or part of the transcript – Where the Court orders the Regional Appeal Registrar to procure and provide the parties with transcript of the first and third day of the hearing before the trial judge – Application otherwise dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time – Where the trial judge made two sets of orders to determine applications and the appellant mistakenly only appealed from one set of orders – Where the appellant seeks an extension of time to appeal from the second set of orders – Where the appellant seeks to consolidate appeals relating to the orders and use the appeal books already filed in the existing appeal – Where the respondent agrees to the application in part – Where leave is granted for the appellant mother to appeal out of time, but only in relation to particular orders – Application dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the mother seeks leave to adduce fresh evidence in the existing appeal and to incorporate that evidence in a supplementary appeal book – Where the respondent opposes the application – Where the appellant seeks to adduce evidence relating to former proceedings and the respondent’s lack of credibility – Where the proposed evidence has no probative value – Where the Full Court only looks to whether there was error by the trial judge – Where the proposed evidence does not assist to vindicate the appellant’s appeal point that the trial judge conducted the proceedings unfairly by depriving her the opportunity to rely on that evidence – Application to adduce further evidence dismissed. |
| Evidence Act 1995 (Cth) ss 26(b), 29(1), 44(2), 45 Family Law Rules 2004 (Cth) r 22.18 |
| Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542; [2010] FamCAFC 220 WJD & TEK (1998) 72 ALJR 1323; [1998] HCATrans 118 |
| APPELLANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| APPEAL NUMBER: | SOA | 91 | of | 2018 |
| SOA | 28 | of | 2019 |
| DATE DELIVERED: | 4 June 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 4 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2018 |
| LOWER COURT MNC: | [2018] FamCA 1056 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
Orders 2(kk), 3(b), 3(c) and 3(d) made by the Regional Appeal Registrar on 8 March 2019 are discharged.
The Regional Appeal Registrar shall forthwith procure and thereafter furnish to the parties in electronic format the transcript of the first and third days of the proceedings conducted before the trial judge on 13 November and 7 December 2018.
In the event the appellant wishes to rely upon transcript of the second day of the proceedings before the trial judge on 14 November 2018 in the appeal, then she shall by Friday 21 June 2019:
(a)File a copy of the extra transcript upon which she relies by electronic mail; and
(b)Serve the respondent with the transcript by either electronic mail to his email address or by posting a hard copy to his postal address.
Otherwise, the Application in an Appeal filed on 1 May 2019 is dismissed with no order as to costs.
Leave is granted to the appellant to file an Amended Notice of Appeal by Friday 7 June 2019, so as to include her appeal from Orders 4, 5 and 6 made by Cronin J on 12 December 2018, but without amendment to the grounds of appeal which appear in her Amended Notice of Appeal filed on 8 May 2019.
Otherwise, the Application in an Appeal filed on 23 May 2019 is dismissed with no order as to costs.
The Application in an Appeal filed on 30 May 2019 is dismissed with no order as to costs.
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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 91 of 2018; SOA 28 of 2019
File Number: MLC 4941 of 2014
| Ms Peake |
Appellant
And
| Mr Cousins |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
On 7 and 12 December 2018, Cronin J made two sets of orders which collectively determined five contested applications between the appellant mother and the respondent father. The appellant appealed from the first set of orders, but not from the second, which she now considers to have been a mistake.
There are now three applications in the appeal brought by the appellant to be determined.
The first is an Application in an Appeal filed on 1 May 2019, seeking that the Court bear the cost and relieve the appellant of the burden of obtaining the electronic transcript of the proceedings before the trial judge for use in the appeal. She does not seek an order dispensing with the need for transcript. The premise of her application for the Court to carry the cost of the transcript is her “financial stress”, to which she deposed in her accompanying affidavit.
The second is an Application in an Appeal filed on 23 May 2019, seeking an extension of time within which to appeal from the second set of orders made on 12 December 2018 and for the two appeals to then be consolidated and the appeal books already filed in the first appeal to also constitute the appeal books for the second appeal. Although not explicit in the application, it is implicit that the grounds of appeal will remain unchanged and that her summary of argument already filed in the existing appeal encapsulates all of the arguments germane to the prospective appeal.
The third is an Application in an Appeal filed on 30 May 2019, seeking leave to adduce fresh evidence in the existing appeal and to incorporate the evidence within a supplementary appeal book.
Although the existing substantive appeal is resisted by the respondent, he took a conciliatory approach to these applications. He partly agreed to the first and second, but he opposed the third.
The first two applications should be granted, but only in part and not in the terms sought by the appellant. The third application should be dismissed.
Background
The trial judge simultaneously heard the five contested applications between the parties over three days: 13 November 2018, 14 November 2018 and 7 December 2018.
Some determinative orders were made on 7 December 2018, but the remaining orders were made on 12 December 2018, when the reasons for judgment were published.
The decrees made on 7 December 2018 which are the subject of the existing appeal are:
…
(2)[The Appellant] 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.
…
(4) In relation to the contravention application in which the respondent is [the Respondent], the two allegations prosecuted by the applicant [the Applicant] 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.
…
Order 2 relates to the decision by the trial judge to sustain the contravention application brought by the respondent against the appellant on 10 August 2018, by which he prosecuted her for five contraventions of parenting orders made between the parties in October 2015 (at [12(a)], [24]-[62]).
Order 4 relates to the decision by the trial judge to dismiss without sanction the two contravention applications brought by the appellant against the respondent on 28 August 2018 (at [12(b)], [124]-[138]) and 1 November 2018 (at [12(e)]), [139]-[148]), which applications pertained to his alleged breaches of orders made in October 2015, November 2016, and May 2018. Only two counts of many were proven against the respondent – one under the first application filed in August 2018 and the other under the second application filed in November 2018.
The further orders made on 12 December 2018 which relate to the disposition of those contravention applications, but which are not yet the subject of appeal, are:
…
(4)In respect of the contravention application of the [Appellant] against the [Respondent] 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.
(5) The contravention application filed by the [Appellant] on 28 August 2018 is otherwise dismissed.
(6)The contravention application filed by the [Respondent] on 10 August 2018 is otherwise dismissed.
…
Orders 4 and 5 relate to the first of the appellant’s contravention applications, but they add nothing to the substance of Order 4 made on 7 December 2018. It is open to question whether they are even decrees and amenable to appeal, given the dispositive nature of Order 4 made on 7 December 2018.
Order 6 relates to the respondent’s contravention application, covered by Order 2 made on 7 December 2018. Similarly, the latter order adds nothing to the substance of the earlier order.
Application filed 1 may 2019
Rule 22.18 of the Family Law Rules 2004 (Cth) (“the Rules”) principally requires the appellant to prepare and file the appeal books, including transcript. While in cases of exceptional hardship for the appellant, the burden of the preparation of the appeal books may instead be imposed upon the respondent or the Regional Appeal Registrar, the Rules contain a note to the effect that the responsibility for obtaining the transcript still falls upon the appellant.
Despite some past reservations about this Court’s power to order the provision of transcript for a party (WJD & TEK (1998) 72 ALJR 1323; Forbes & Bream (2008) 222 FLR 96 at [30]-[34]), the Court has proceeded on the basis that it will do so in exceptional cases (Forbes & Bream at [35]-[36]). The considerations which will influence whether such an order might be made in the exercise of discretion have been identified and include (see Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542 at [16]):
(a)Whether the case is financial or child-related;
(b)Whether the whole or only part of the transcript is integral to the appeal;
(c)Whether the appellant can defray any part of the transcript cost;
(d)The proportional cost of the transcript to the anticipated cost of the appeal;
(e)The prima facie merit of the appeal; and
(f)Whether the Full Court hearing the appeal should make the decision about transcript.
Nature of the proceedings
The existing appeal only concerns decrees disposing of contravention applications, though the alleged contraventions do pertain to parenting orders. While the underlying applications were prosecuted under Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”) and were therefore child-related proceedings (s 69ZM), the determination of whether either party contravened orders without reasonable excuse did not entail any examination of the best interests of the parties’ children. The children’s best interests could conceivably affect the sanction imposed upon a parent for an unreasonable contravention of a parenting order but, in this instance, that consideration is hardly relevant. The appellant was ordered to enter into a bond (Order 2 made on 7 December 2018), which has no effect upon the children, and the respondent escaped any sanction (Order 4 made on 7 December 2018).
Accordingly, the paramountcy principle is not a relevant consideration in either the appeal or this interlocutory application.
How much transcript is needed?
As was recognised in Sampson & Hartnett (at [15]), a complete transcript may not be necessary to prosecute the appeal. Transcript is costly and the Court is not resourced to sponsor the litigation costs of individual litigants, so it is useful to analyse which grounds of appeal actually require transcript for their potential vindication.
The Notice of Appeal filed by the appellant on 10 December 2018 was amended on 8 May 2019. The amended grounds of the appeal are numerous, but are helpfully collected under various themes: denial of a fair trial; apprehended and actual bias; denial of procedural fairness; and errors of fact and law. The appellant has already filed her summary of argument, which addresses the asserted errors under those themes rather than by individual grounds.
By reference to the appellant’s filed written submissions, the errors of fact and law she asserts exist can be argued without recourse to the transcript. Any such errors should be readily apparent from the comparison between the trial judge’s reasons and the affidavit evidence relied upon by the parties. It is not contended that any oral evidence given in cross-examination by either party demonstrates any error by the trial judge.
As for the other thematic errors alleged by the appellant, when her summary of argument is stripped of generic statements of principle, her more precise complaints are:
(a)The trial judge permitted her to rely upon her affidavit sworn on 4 December 2018, but only for the purpose of her defence of the respondent’s contravention application and not to prosecute her own contravention applications filed on 28 August 2018 and 1 November 2018;
(b)The trial judge accepted the respondent’s evidence in preference to her evidence, when neither was corroborated, to sustain the respondent’s contravention application against her;
(c)The trial judge displayed either apprehended or actual bias against her, though she apparently made no disqualification application to the trial judge during the hearing, which waiver could be fatal to this ground of appeal. Save for her complaint that the trial judge was “adversarial” and “short” with her on 13 November 2018, her complaints of bias hinge entirely upon selected portions of the trial judge’s reasons;
(d)At an earlier procedural stage of the proceedings, the Regional Appeals Registrar (and later the trial judge) denied her permission to issue subpoenae to prospective witnesses requiring them to give oral evidence at the hearing, which evidence she anticipated would help support her two contravention applications;
(e)The trial judge pre-determined the applications without having heard all of the evidence, as demonstrated by comments made by the trial judge “early in proceedings”;
(f)The trial judge pressured her to submit to various charges within her contravention applications being struck out; and
(g)The trial judge allowed the respondent to cross-examine her on material “not made available” to her and which was “not in his affidavit”.
The appellant agreed that catalogue was a fair and accurate reflection of her grievances in the appeal.
As to the first complaint, the transcript of 7 December 2018 is not needed because the appeal can be determined on the basis of her assertion being correct that, on that day, the trial judge prevented the appellant from relying upon the nominated affidavit to prosecute her part-heard contravention applications. The appellant obviously prepared the affidavit in the period between the second and third days of the hearing. The appellant could not convincingly explain to me in the hearing of this application why it was necessary for her to file and serve another affidavit to prosecute her contravention applications, which applications related to alleged breaches of orders well before the applications were filed, months beforehand. Nor does her summary of argument explain why the trial judge erred by forbidding her use of the late affidavit to prosecute the respondent when the hearing of her applications was already part-heard. Without such a rational explanation, the alleged error remains a bare contention and the trial judge’s procedural decision cannot be effectively challenged. The appellant conceded the subject affidavit was intended to impugn the respondent’s credit, but she could not sensibly explain how it would necessarily have achieved that purpose when the respondent’s cross-examination was apparently already concluded.
As to the second complaint, it may be accepted both parties gave uncorroborated evidence in support and defence of the alleged contraventions. The transcript of the hearing is not needed to establish that is so. The question for the substantive appeal will be simply whether it was open to the trial judge to accept the respondent’s uncorroborated evidence over the appellant’s uncorroborated evidence.
As to the fourth complaint, it may also be accepted that the Registrar refused the appellant leave to issue subpoenae to prospective witnesses. The trial judge referred to it in the reasons for judgment (at [63]-[82], [146]) and, in the context of hearing the appellant’s application to review the Registrar’s decision, endorsed the decision and remarked how the proposed witnesses would not have aided the appellant’s cause. In the substantive appeal, the trial judge’s reasons will either be valid or not on their face. The transcript will be of no further assistance in that regard.
As to the seventh complaint, it may also be determined without the transcript. Simply put, an opposing party may cross-examine a party broadly, provided the questions remain relevant to the issues in dispute. More specifically, the Evidence Act 1995 (Cth) contemplates how questions in cross-examination may relate to the contents of documents not previously seen by the witness (for example, ss 26(b), 29(1), 44(2), 45). It is difficult to imagine how error could be demonstrated merely by allowing the respondent to cross-examine the appellant about documents she had not previously seen. Any oral evidence given by the appellant during cross-examination which was ultimately utilised by the trial judge will be evident from the reasons for judgment. His Honour’s reliance upon such evidence will have either been permissible or not. The transcript will not inform that decision.
As to the third, fifth and sixth complaints, they relate to comments attributed to the trial judge on 13 November 2018 and “early in [the] proceedings”, which it is alleged reveal his Honour’s exertion of undue pressure, bias, and pre-judgment of the issues. The appellant would be denied the chance to make good on those complaints without recourse to the transcript of the first day of hearing, which is a powerful consideration in this application. The appellant reasonably needs the transcript for the first day of the hearing for the appeal, though the same need does not evidently apply to the transcript of the second and third days of the hearing.
The appellant’s financial circumstances
The appellant’s relative impecuniosity is obliquely established by the affidavit filed on 1 May 2019, though the evidence is unhelpfully scant.
She is an undischarged bankrupt and full-time student who has the primary care of the parties’ children. Inferentially, her income must be very modest. The appellant did not disclose her assets and liabilities, but did assert she is paying off the costs of her late father’s recent funeral and cremation.
Proportional costs
No evidence was led as to the cost of purchasing three days, or even one day, of transcript of the hearing before the trial judge.
The appellant was self-represented in these interlocutory proceedings, as she was before the trial judge and as she expects to be before the Full Court in the appeal. The cost of transcript will therefore be the principal expense she would bear in the appeal proceedings. That makes the cost of the transcript almost the entirety of the expense the appellant will incur in the appeal and is a countervailing reason why, in the absence of her having to bear any other costs, the appellant should bear the cost of the transcript.
Merit of the appeal
There is no need to address the perceived merit (or any lack thereof) of the substantive appeal. Suffice to say for the moment, the respondent has not sought its summary dismissal pursuant to s 96AA of the Act.
Decision now?
Leaving the determination of this interlocutory application to the Full Court constituted to hear the substantive appeal may cause the hearing of the appeal to be adjourned, which would not benefit either party or the Court. It is better for the decision to be made now, though the Full Court later hearing the appeal is not necessarily bound by this interlocutory decision (see Sampson & Hartnett at [18], [87]).
Conclusion
The appellant’s need for the transcript of the first day of the proceedings to have any chance of sustaining the appeal and her probable inability to afford the cost of the transcript are considerations which collectively carry more weight than any perceived lack of merit in the appeal and the absence of any other cost the appellant will bear to prosecute the appeal. An order will be made for the Regional Appeal Registrar to procure and provide to the parties the transcript of the first day of hearing before the trial judge on 13 November 2018.
None of the contents of the appellant’s summary of argument in the appeal, which she filed on 8 May 2019, tended to demonstrate that she needs the transcript of either the second or third days of the hearing before the trial judge to have the chance to make good on her appeal. However, she asserted the hearing of her contravention applications was not commenced until the second day and, while she conceded little occurred on that day, the hearing was adjourned for completion on the third day. She insisted she needed the transcript for that day too. Out of abundant caution, an order will also be made for the Regional Appeal Registrar to procure and provide to the parties the transcript of the third day of hearing before the trial judge on 7 December 2018
That being so, procedural orders formerly made by the Regional Appeal Registrar requiring the appellant to electronically file and serve the transcript for the second day of trial (14 November 2018) will need to be discharged. If the appellant still wants the transcript of the second day of the hearing, as she said she did, she must bear the acquisition expense and ensure it is electronically filed and served within the next few weeks, well in advance of when the appeal could expect to be listed for hearing. Orders will permit that potentiality.
Application filed 23 may 2019
The time for the appellant to appeal from the orders made on 12 December 2018 expired nearly five months ago. The Notice of Appeal she intends to file in respect of those orders, if permitted to do so, is in identical terms to the Amended Notice of Appeal she filed on 8 May 2019 in respect of the orders made on 7 December 2018.
In her supporting affidavit filed on 23 May 2019 the appellant deposed:
4. In relation to the Orders for Extension of time to appeal orders 12 December 2018 before Justice Cronin, I say:
…
b.I proceeded with the Appeal of SOA91 of 2018 and its (sic) Summary of Argument on the ignorance and wrong assumption that I was appealing the substantive extemporaneously findings for the Application-Contravention of the father filed on 10 August 2018 and Reason of Judgement delivered on 12 December 2018 (for both Orders of 7 December 2018 and Orders 12 December 2018).
…
d.The delivery of Orders for penalty, by way of a bond, for the Application-Contravention of the father filed 10 August 2018 (Orders 7 December 2018 of Justice Cronin) preceded the Orders of the substantive findings (Orders 12 December 2018) of said Application-Contravention of the father.
e.This caused great confusion for me as I wrongly, due to my ignorance of the law, had presumed that I was appealing the substantive findings of the charge of convention.
…
g.Effectively I am appealing the same findings from one proceeding before Justice Cronin and the substantive charge of contravention, for which I maintain my innocence.
(As per the original)
The principles governing the exercise of discretionary power to extend time for a procedural step in litigation are not in doubt. The power should be exercised so as to do justice between the parties (Gallo v Dawson (1990) 93 ALR 479 at 480). In order to determine whether the strict application of a time limit will work an injustice, relevant considerations will usually be the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
The overarching consideration in this instance is the appellant’s mistaken belief she was appealing from all of the orders related to the dismissal of her two contravention applications and the success of the respondent’s contravention application. Her mistake was attributable to the curious fragmentation of the trial judge’s orders, made on two different days, to finally determine the three contravention applications. Her existing appeal from the first set of orders was filed within time. Leaving aside any reservations about the utility of an appeal from Orders 4, 5 and 6 made on 12 December 2018, which orders seemingly add little or no dispositive force to the first set of orders made on 7 December 2018, it is tolerably clear that the respondent would not be prejudiced by leave being granted to the appellant to bring her appeal against those orders out of time. He sensibly consented to the appellant’s application. The appellant conceded nothing new will be raised in the appeal which is not already the subject of the existing appeal, so leave should be granted to the appellant. The grounds of appeal will be the same and her summary of argument will not change.
Given the inter-connection between the orders made by Cronin J on 7 and 12 December 2018, rather than bringing a separate appeal against the 12 December orders and then consolidating it with the existing appeal against the 7 December orders, it would be more efficient to permit the appellant to amend the existing appeal by simply expanding it to include her challenge to Orders 4, 5 and 6 made on 12 December 2018.
However, the appellant’s application for leave to appeal out of time was not confined to only those orders. Her application extended to Orders 1 and 3, which relate to the remaining two of the five applications heard and determined by the trial judge. They were interlocutory applications filed by the appellant on 7 August 2018, as amended on 28 August 2018 (dismissed by Order 1 made 12 December 2018), and on 7 September 2018 (dismissed by Order 3 made 12 December 2019).
The first of those applications principally sought the stay of orders made by Bennett J on 31 July 2018, which orders she appealed by Notice of Appeal filed on 3 August 2018 (Appeal No. SOA 55 of 2018). Self-evidently, that is a different appeal to the ones in which these three Applications in an Appeal are now being considered (Appeal No. SOA 91 of 2018 and Appeal No. SOA 28 of 2019). The application otherwise sought to supplement the orders made by Bennett J on 31 July 2018 and to disqualify her Honour from any further involvement in the parties’ litigation. The remainder of the relief sought in the application bore closer resemblance to the appellant’s grizzling dissatisfaction with past events in, and her aspirations for the future progress of, the litigation than to applications for prescriptive orders.
The appellant’s application to stay Bennett J’s orders was partially successful, but her application for the remainder of the interlocutory relief she sought was dismissed (at [98]-[123]). The appellant conceded this present appeal is concerned only with Cronin J’s treatment of the parties’ contravention applications in December 2018. She did not address and conveniently overlooked the prejudice the respondent would experience in having to belatedly meet her appeal against the dismissal of her disjointed suite of complaints in her first interlocutory application within the existing appeal proceedings, which relate to the decisions made by Cronin J in December 2018, rather than within the other appeal proceedings, which relate to the decisions made by Bennett J in July 2018. Even if the appellant had addressed the respondent’s prejudice, it is difficult to imagine how she could have persuasively sated it.
The second of the appellant’s applications concerned five separate issues: leave to issue subpoenae; the enforcement of a money order; the procurement of a family report; case management orders; and the declaration of the respondent as a vexatious litigant.
The appellant’s application for leave to issue subpoenae compelling some witnesses to give evidence in support of her contravention applications against the respondent was dismissed (at [63]-[82]). The order dismissing the application is not a decree from which an appeal lies because it was not an order which determined the parties’ litigious dispute. It was only a procedural order in the nature of a ruling which bore upon the evidence which would then be available for ultimate use in the determination of the dispute. The appellant’s appeal against the substantive orders made to dismiss her two contravention applications is wide enough to incorporate her complaint that she was wrongly deprived of evidence to properly prosecute the contravention applications.
The appellant’s application to enforce the respondent’s payment of money to her under a former order was dismissed for lack of evidence (at [83]-[85]). That lacuna cannot, or alternatively should not, be cured in this appeal. If the appellant can muster the evidence to prove the respondent remains indebted to her under an operative order of the Court then she can bring a fresh application before a trial judge. She suffers no prejudice in being denied leave to bring an appeal against the order dismissing that particular application out of time.
The appellant’s application for a family report was dismissed because the parties’ competing applications for parenting orders under Part VII of the Act are not yet close enough to final trial (at [86]-[88]). The order dismissing that application is not a decree amenable to appeal, so the question of leave being granted to appeal from it out of time is otiose.
The appellant’s application for various case management orders was dismissed (at [89]-[93]). Similarly, the order dismissing that application is not a decree amenable to appeal, so the question of leave to appeal from it out of time is again superfluous.
The appellant’s application for the respondent to be declared a vexatious litigant was dismissed (at [94]-[97]). The appellant seemed oblivious to the irony of her application, given the history of the parties’ litigation, the proliferation of much of which was instigated by her. The prospects of the proposed appeal are a relevant consideration when determining whether leave should be granted for it to be instituted out of time. In this instance, the appellant adduced no evidence and made no submission addressed to the likely prospects of success her intended appeal against the order dismissing her vexatious litigant application. Ostensibly, it has no prospects of success. The contravention application contemporaneously brought by the respondent against the appellant was sustained so, whilst ever the trial judge’s order in respect of that application remains undisturbed, the respondent’s application was justified and was not vexatious. Leave to appeal the order dismissing the appellant’s vexatious litigant application out of time is refused. She suffers no prejudice. She is free to file a fresh application against the respondent at any time she desires seeking another order to that effect, which would again be considered on its merit.
For those reasons, leave will be granted to the appellant to appeal out of time, but only from Orders 4, 5 and 6 made on 12 December 2018. Otherwise, her Application in an Appeal filed on 23 May 2019 will be dismissed.
Application filed 30 may 2019
The appellant wants to adduce fresh evidence in the existing appeal and to incorporate it within a supplementary appeal book.
The proposed fresh evidence comprises, at least in part, an Application in a Case and the supporting affidavit she prepared on 4 December 2018, which documents she apparently tried to file on that date while the subject proceedings before the trial judge were adjourned part-heard. For reasons not satisfactorily explained to me, the documents were not actually filed until 11 December 2018, after the trial judge pronounced the first set of appealed orders on 7 December 2018.
When settling the contents of the appeal books for this appeal on 8 March 2019, the Regional Appeal Registrar omitted those two documents from the appeal books index and, it is seemingly alleged, refused the appellant’s application to include them. The appellant pitched her current application as an application to belatedly review that decision of the Registrar, but I am prepared to treat it as an application to adduce fresh evidence simpliciter. Nonetheless, the application should be dismissed.
The Application in a Case the appellant tried to place before the trial judge for determination sought two things:
(a)Orders to set aside former orders, made over two years before on 9 November 2016, which orders apparently dismissed the appellant’s application made another two years before that in November 2014 seeking departure orders from the child support assessment during the closed period between July 2014 and December 2015; and
(b)Orders to set aside costs orders made against the appellant on 10 November 2017, which costs apparently related to her failed child support application which was dismissed in November 2016.
The affidavit filed by the appellant in support of the application contended that evidence which was pertinent to those prior proceedings had been “fraudulently suppressed” and only recently discovered by her and, consequently, its omission from the proceedings caused the discretionary decisions to miscarry.
Inferentially, the appellant tried to file the application and the affidavit so as to force the trial judge to consider the application contemporaneously with and in addition to the other five applications his Honour heard between the parties in November/December 2018. It is unsurprising the application was not entertained by the trial judge during the hearing, which was part-heard when the appellant first tried to file the application and the supporting affidavit, and judgment was reserved when the documents were later successfully filed.
As would be readily apparent, the prior orders relating to child support and costs made in November 2016 and November 2017 have no connection at all with the orders made by the trial judge on 7 and 12 December 2018, which are and will be the subject of the pending appeal. The evidence the appellant wanted to adduce in the form of her affidavit went, she contended, to the credibility of the respondent generally. Her affidavit attesting to the respondent’s alleged lack of credit would be of no assistance in the appeal from the orders made in December 2018 either. Accordingly, there is no warrant for those historic documents to form part of the appeal books or be evidence in this appeal.
Although not apparent from the face of the application filed on 30 May 2019 or the affidavit filed in support of it, during the hearing, the appellant informed that she wanted to also rely upon other evidence in addition to the two documents just mentioned, none of which had been served upon the respondent. The extra evidence comprised:
(a)A vast sheaf of text messages which allegedly passed between the parties over an unspecified period of time up to and including 5 December 2018;
(b)A copy of an interim intervention order made by a State court against the respondent in favour of the appellant in April 2019; and
(c)Emails which passed between the appellant and police at times after the proceedings before the trial judge were concluded.
According to the appellant’s submissions, the evidence was intended to prove the respondent’s lack of credibility and her fear of him. If admitted in evidence in the appeal, the documents could not do the probative work the appellant expected. The Full Court only looks to whether there was error by the trial judge at first instance; not how the credibility of the parties at first instance might now be construed. However, more to the point, the appellant lost sight of the fact that the evidence could only be adduced in the appeal to help vindicate her appeal point that the trial judge conducted the proceedings unfairly by depriving her of the opportunity to rely upon that evidence. Some of it did not even exist at the time of the hearing before the trial judge, so it could not help her prove the trial judge wrongly forbid her use of it. As for the text messages passing between the parties which pre-dated the conclusion of the proceedings before the trial judge, in isolation of any current explanation about content and context, they alone could not reasonably prove the respondent’s dishonesty to the point it would demonstrate it was not open for the trial judge to determine the contravention applications in the manner he did.
The Application in an Appeal filed on 30 May 2019 should be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 4 June 2019.
Associate:
Date: 4 June 2019
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