Peake & Cousins (No 4)
[2019] FamCAFC 120
•15 July 2019
FAMILY COURT OF AUSTRALIA
| PEAKE & COUSINS (NO. 4) | [2019] FamCAFC 120 |
| FAMILY LAW – APPEAL – Where the mother appeals from orders made in relation to contravention applications filed by the mother and father – Where no question of general principle is raised – Where short reasons are adequate – Where the mother alleged bias on the part of the trial judge – Where it is not a disqualifying ground that a judge decides an issue in the proceedings against a party – Where nothing to which the mother directs attention demonstrates that the trial miscarried, by reason of either actual or apprehended bias on the part of the trial judge – Where the mother also complains of a denial of procedural fairness, errors of fact and law and an inadequacy of reasons – Where nothing to which the mother directs attention establishes any such error – Appeal dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) Div 12A, s 94(2A) |
| Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83 Piepkorn v Caroma Industries Ltd [2000] FCA 1230 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19; [2007] FCA 1544 SZCOS v Minister of Immigration and Citizenship [2008] FCA 570 |
| APPELLANT: | Ms Peake |
| RESPONDENT: | Mr Cousins |
| INDEPENDENT CHILDREN’S LAWYER: | Not participating |
| FILE NUMBER: | MLC | 4941 | of | 2014 |
| APPEAL NUMBER: | SOA | 91 | of | 2018 |
| DATE DELIVERED: | 15 July 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Kent JJ |
| HEARING DATE: | 15 July 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 December 2018 |
| LOWER COURT MNC: | [2018] FamCA 1056 |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
| INDEPENDENT CHILDREN’S LAWYER | Not participating |
Orders
The appeal from the orders made on 7 and 12 December 2018 be dismissed.
There be 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 (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 91 of 2018
File Number: MLC 4941 of 2014
| Ms Peake |
Appellant
And
| Mr Cousins |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
In my opinion this appeal ought be dismissed and, as it does not raise any question of general principle, reasons for that decision may be given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”). The singular lack of merit in this appeal renders the conclusion that reasons in short form are all that is necessary.
The substantive parenting proceedings between Ms Peake (“the mother”) and Mr Cousins (“the father”) concerning their sons, X (born in 2008) and Y (born in 2010) involves the mother’s application for orders to enable her to relocate the children to live with her in the United States of America. The father opposes that application.
The substantive proceedings have been punctuated by multiple applications and also by appeals brought by the mother from orders determining some of those applications. That has delayed the hearing and determination of the substantive proceedings which, but for these punctuations, would likely have been heard at a trial in the first half of this year.
By my calculation, this is the mother’s fifth application or appeal to the Full Court of the Family Court. This appeal is from some of the orders made by the trial judge on 7 and 12 December 2018 respectively concerning, inter alia, the Contravention Application of the father against the mother filed on 10 August 2018 (orders of 7 December 2018), and the Contravention Applications of the mother against the father filed on 28 August 2018 and 1 November 2018 (orders of 12 December 2018).
The father’s Contravention Application filed on 10 August 2018 alleged that, on five specified dates in July and August 2018, the mother had contravened paragraph 5 of the operative final parenting orders made on 13 October 2015 which, in summary, required each parent to do all things necessary to ensure the children communicate with the other parent via Skype or FaceTime and to do so privately, that is, not in the presence or hearing of the parent or other family members.
In the face of the father’s application filed on 10 August 2018, the mother filed a Contravention Application on 28 August 2018. Contained within it are 50 numbered allegations of contravention by the father. However, several of those numbered allegations assert multiple dates and thus separate instances of contravention on each nominated date (allegations numbered 3, 5, 13, 30, 31 and 48). When account is taken of the multiple dates alleged, the mother can be seen to have alleged almost 100 counts of contravention. More significantly, many of these alleged contraventions were asserted to have occurred three or even four years ago and many were with respect to interlocutory parenting orders made in the Federal Circuit Court of Australia in 2014, which had been discharged by the subsequent final order made on 15 October 2015.
The mother filed a further Contravention Application on 1 November 2018 alleging a further single count of contravention as having occurred on 31 August 2018.
It is unsurprising that, confronted with the number, breadth, and content of contraventions alleged by the mother against the father, that the trial judge applied the principles for conducting child-related proceedings contained in Division 12A of the Act including by active direction, control and management of the proceedings.
With respect to the father’s Contravention Application, having heard each
self-represented party give evidence before him and be cross-examined by the other party, the trial judge preferred the evidence of the father as he was plainly entitled to do. It could not be said that the father’s version of evidence concerning the five counts of contraventions he alleged was glaringly improbable or contrary to the weight of evidence (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550). The trial judge made these orders on 7 December 2018 from which the mother appeals:
…
2.[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.
…
4.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.
With respect to the mother’s Contravention Application filed on 28 August 2018, many allegations were ultimately not pressed and some were struck out by the trial judge for duplicity and for other reasons. In the result, the father admitted the contravention alleged in the mother’s Contravention Application filed on 1 November 2018 and the trial judge made these orders on 12 December 2018 from which the mother appeals:
…
4.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.
…
6.The contravention application filed by the father on 10 August 2018 is otherwise dismissed.
…
The mother’s complaints on appeal
Taken from the mother’s Amended Notice of Appeal, the mother complains that the trial judge demonstrated actual bias against her and that the trial judge’s conduct of the proceedings gave rise to a reasonable apprehension of bias on the part of the trial judge. It is trite to observe that it is not a disqualifying ground that a judge decides an issue in the proceedings against a party (see, for example, Piepkorn v Caroma Industries Ltd [2000] FCA 1230). As Campbell JA observed in Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366 at [95], the fact that “a judge has not accepted submissions, or has taken a view of evidence in a way that one of the litigants disagrees with or asserts is wrong in principle, is not enough to establish a reasonable apprehension of bias” (see also Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 and SZCOS v Minister of Immigration and Citizenship [2008] FCA 570 per Bennett J at [36]).
Having carefully reviewed the transcript of the trial, nothing to which the mother directs attention in her Amended Summary of Argument or in her oral argument of the appeal demonstrates to my mind that the trial miscarried, by reason of either actual or apprehended bias on the part of the trial judge. I pause to note here that the mother’s Amended Summary of Argument in addressing the contention concerning apprehended bias and actual bias makes, as her first point, the assertion that the trial judge stated during the proceeding on 13 November 2018 “that he particularly ‘hated people like’ the Applicant [being a reference to the mother]”. On the hearing of the appeal the mother confirmed, now having read the transcript that those words do not in fact appear in the transcript. Notwithstanding this, the mother did not withdraw the assertion. Rather she contended that someone (a person or persons unknown) had redacted the transcript to remove those words.
The mother asserted, from the bar table, that a person with her in Court had heard the words. Yet it is the fact that, before this Court, no evidence is presented, that is, no sworn evidence by the mother (exposing her potentially to problems if she was found to perjure herself) nor is there evidence from the reputed witness, in respect of such a serious allegation made against this Court and the trial judge.
The mother’s further complaint is that the trial judge did not afford her procedural fairness in various respects.
Review of the transcript reveals that the mother failed to serve the father with the annexures to the affidavit she relied upon in prosecuting her Contravention Application filed on 28 August 2018 in advance of the trial. Indeed, it was that failure that led to the need to adjourn the further hearing of the mother’s Contravention Application on 14 November 2018.
Notably, relevant to the mother’s complaints about procedural fairness, the trial judge adjourned the proceedings rather than dismissing the mother’s application for this failure.
In the lead up to that adjournment, the trial judge asked the mother when she could serve the documents. The mother replied “[r]ight now” (Transcript 14 November 2018, p.128 line 29). Moreover there was this further exchange between the trial judge and the mother (Transcript 14 November 2018, p.135 lines 15-27):
HIS HONOUR: The matter is adjourned to 10 am on 7 December 2018 part-heard, and the only issue I will hear on that date is the issue of the application filed on 28 August in relation to the contravention, because I’ve heard all the other material in relation to all other issues, and I’m not going to allow you to re-open those. In the meantime, you had better serve those documents expeditiously and not in electronic form, all right? Is that quite clear to you?
[MS PEAKE]: Yes. By ordinary post. It’s very hard to get him by – in person, your Honour.
HIS HONOUR: Well, how do you want the documents served on him?
[MR COUSINS]: Your Honour, electronic is fine.
(Emphasis added)
There was this further exchange (Transcript 14 November 2018, p.136 lines
17-20):
HIS HONOUR: Well, no doubt you will now pursue that issue that you will forthwith just serve the annexures to your affidavit electronically. Is that clear?
[MS PEAKE]: Yes, your Honour.
(Emphasis added)
On 14 November 2018, the trial judge made these orders:
IT IS ORDERED THAT
1. All extant interim applications are adjourned to 10:00 am on 7 December 2018 (“the adjourned date”):
2. For the purposes of the hearing on the adjourned date, the father is permitted to attend by telephone from the United States of America on the basis that he makes the necessary arrangements for that communication.
3.The only matter to be heard on the adjourned date are the allegations numbered (2), (22), (30), (31) and (42) in the contravention application of the mother filed 28 August 2018.
4.The mother forthwith serve the annexures to her affidavit of 28 August 2018 on the father electronically.
5.The mother have leave to file a further affidavit by the proposed witness in relation to the allegations numbered (2), (22), (30), (31) and (42) in the said contravention application, and such affidavit be filed by no later than 4:00 pm on 28 November 2018.
(As per the original)
On the resumed date on 7 December 2018, it became apparent that the mother had not complied with the order of 14 November 2018 in that only about 48 hours prior to the resumed hearing had the mother sent a series of emails to the father including the subject annexures. Notwithstanding the exchanges earlier quoted and the mother’s clear expression to the trial judge that she understood what was required, challenged about the feature of the late delivery of material, the mother contended that she did not understand the meaning of “forthwith”.
Notwithstanding all of this, the trial judge allowed the mother to proceed to prosecute her application and allowed the mother to rely upon those of the documents she considered to be relevant to that prosecution.
The purpose of setting this out is to illustrate, by example, that the trial judge was at considerable pains to accommodate the mother notwithstanding what might be viewed as her abject failure to conduct the proceedings regularly and in conformity with, for example, the orders made by the trial judge on 14 November 2018.
Review of the transcript reveals that the hearing of the father’s Contravention Application proceeded on 13 November 2018 to its completion of that hearing (Transcript 13 November 2018, p.78). The trial judge then moved on to determine other applications by the mother and subsequently her Contravention Application (Transcript 13 November 2018, p.105).
That hearing being complete, it is disingenuous for the mother to contend that she was somehow denied procedural fairness with respect to her subsequently filed affidavit on 4 December 2018 (outside of the specific orders made by the trial judge of 14 November 2018 quoted above) with respect to the father’s Contravention Application.
In short, none of the particulars asserted by the mother with respect to a denial of procedural fairness are established.
The mother asserts a general complaint that the trial judge made errors of fact and law. Nothing to which the mother directs attention in her Amended Summary of Argument or in her oral argument on appeal establishes any such error.
Finally, the mother complains that the trial judge’s reasons for judgment are inadequate. That complaint is rejected on the basis that, on any reasonable reading, the trial judge’s reasons for judgment disclose a discernible path of reasoning to the conclusions that were reached by the trial judge.
I would order that the appeal be dismissed.
AINSLIE-WALLACE J
I too would make that order and for the reasons expressed by Kent J.
STRICKLAND J
Yes, for completeness, I note that in the mother’s Amended Summary of Argument filed on 5 June 2019, at pages 12 to 13 she sought an order giving her leave to adduce “new evidence” and to review the decision of the Southern Appeal Registrar to exclude from the Appeal Books an affidavit filed 4 December 2018 titled “Contempt/Departure”. As I pointed out to the mother at the commencement of the hearing of this appeal, that same application was made before Austin J on 4 June 2019 and his Honour dismissed that application. Thus, it is not open to the mother to seek to make the same application before this Court.
I too agree with the reasons for judgment delivered by Kent J and the order proposed by his Honour.
A further order that we make is that there be no order as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Kent JJ) delivered on 15 July 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 22 July 2019
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