Prantage & Prantage
[2015] FamCAFC 145
•24 July 2015
FAMILY COURT OF AUSTRALIA
| PRANTAGE & PRANTAGE | [2015] FamCAFC 145 |
| FAMILY LAW – APPEAL – CHILDREN – Where the children were placed in the care of the Department of Health and Human Services (“DHHS”) – Where there are proceedings pending in the Children’s Court of Victoria – Whether s 69ZK of the Family Law Act 1975 (Cth) applies – Where a solicitor appeared for the DHHS as amicus curiae – Where the father agreed to only pursue the grounds of appeal that do not relate to the children’s current living arrangements and DHHS consented to that approach. FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the father was restrained from instituting proceedings for parenting orders pursuant to s 118(1)(c) (now amended) – Whether orders are interlocutory – Leave not required – Father’s right to institute further proceedings for parenting orders within meaning of reg 15A of the Family Law Regulations. FAMILY LAW – APPEAL – CHILDREN – Where the father did not challenge the expert evidence or put other expert evidence before the primary judge – Where the father was restrained by injunction from contacting the children and required to return the children to the mother – Where the primary judge made order pursuant to s 68C of the Family Law Act 1975 (Cth) for his arrest without warrant – Whether such an order was justified– Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA, 68C, 69ZK, 94AA(1), 117(2), 117(2A), 118, 118(1)(c) (now amended) Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Family Law Regulations 1984 reg 15A Family Law Rules 2004 r 11.04 |
| DJC v SJS and Another (2005) 34 Fam LR 329 |
| APPELLANT: | Mr Prantage |
| RESPONDENT: | Ms Prantage |
| FILE NUMBER: | MLC | 11263 | of | 2008 |
| APPEAL NUMBER: | SOA | 49 | of | 2014 |
| SOA | 50 | of | 2014 |
| DATE DELIVERED: | 24 July 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Thackray & Macmillan JJ |
| HEARING DATE: | 13 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 July 2014 23 July 2014 |
| LOWER COURT MNC: | [2014] FamCA 541 [2014] FamCA 563 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE DEPARTMENT OF HEALTH AND HUMAN SERVICES: | Mr Foo (amicus curiae) |
Orders
The father’s appeal SOA 49 of 2014 filed 15 August 2014 is dismissed.
The father’s appeal SOA 50 of 2014 filed 15 August 2014 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Prantage & Prantage has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA49 of 2014 and SOA50 of 2014
File Number: MLC 11263 of 2008
| Mr Prantage |
Appellant
And
| Ms Prantage |
Respondent
REASONS FOR JUDGMENT
MAY & MACMILLAN JJ
Introduction
There are two appeals by Mr Prantage (“the father”). The first is from orders made on 17 July 2014, the Notice of Appeal being amended and filed on 15 August 2014. The second Notice of Appeal is from orders made 23 July 2014, also filed on 15 August 2014.
The first appeal is from orders of Bennett J made on 17 July 2014, after an urgent hearing by way of oral application of the father for the interim change of residence for the children (“the interim appeal”). Bennett J dismissed the father’s urgent oral application and also made orders pursuant to s 68C of the Family Law Act 1975 (Cth) (“the Act”) allowing for arrest without a warrant if the father were found to have breached the injunctions restraining him from contacting the children and requiring him to immediately return them to the mother in the event they came into his care. The orders restraining the father were part of consent orders made on 2 March 2012 to which reference will be made at greater length. The father was also ordered to pay the mother’s costs in the sum of $4,275.00.
The second appeal is also from orders of Bennett J. Those orders were made on 23 July 2014 (“the substantive appeal”). The father’s application to set aside parenting arrangements made by consent was dismissed. The judge restrained the father pursuant to s 118(1)(c) of the Act from instituting proceedings without leave. The father was also ordered to pay the costs of by Dr NZ (the family therapist) giving evidence by telephone, fixed in the sum of $1,800.
In those orders provision was made for each party to file written submissions in relation to costs. We understand that Bennett J made a costs order on 9 September 2014 ordering the father pay costs to the mother. During oral submissions the father indicated he wanted to appeal that decision; however no appeal was filed by the father from that order. We cannot deal with that issue of costs.
Background
The children, child M (born in 1998) and child D (born in 2002), have been the subject of intense litigation since the parents separated in November 2008.
The father was born in Australia in 1965 and is presently 50 years of age. Ms Prantage (“the mother”) was born in Australia in 1970 and is 43 years of age.
The parties appeared before Cronin J on a number of hearing dates during July, August and September 2010. An Independent Children’s Lawyer (“the ICL”) was appointed. Cronin J made interim orders on 24 December 2010 for the children to live with the father, attend counselling for the purposes of establishing a relationship with the mother and time for the children to spend with the mother. Cronin J also ordered the ICL and the treating psychologist to explain, if they felt appropriate, the orders to the children and a number of other relevant factors.
On 22 June 2011, Cronin J made further interim orders requiring the children to live with the mother and gave the mother responsibility for major long-term decisions concerning the children’s health and education. Dr NZ had been treating the children since February 2011 and gave evidence during this hearing, which was accepted by the judge.
After many years of litigation, on 2 March 2012 final parenting orders were made by consent before Cronin J. The father was represented by lawyers and counsel at the time. The consent orders relevantly provided:
1.That the [mother] have sole parental responsibility for the children … .
…
3. That the children live with the [mother].
4.Save for Orders 7 and 9 herein the children spend no time nor communicate with the [father].
5.The [father] by himself his servants and agents be and is hereby restrained from communicating or attempting to communicate with either of both of the [children] in any manner including but not limited to text messages, email Facebook or any other form of social communication save for the provisions in Orders 7 and 9 herein.
…
7.That the [father] be at liberty to forward cards and [presents] through Dr. [NZ] and the [mother] be at liberty to deliver cards and messages from the children to the [father] through Dr. [NZ] and Dr. [NZ] be at liberty to withhold all or any such [cards] and messages.
8.That in the event that either of the children contact the [father] and/or attend his home and/or attend the home of the paternal grandparents, the [father] do all things required to ensure the children and/or child is returned immediately to the home of the [mother].
9.That as part of the therapeutic process undertaken by Dr. [NZ] the [father] meet with the children once a month for one hour at a time and place to be arranged in the presence of a male experienced supervisor, preferably Greek speaking and for the purposes of these meetings:
i.The supervisor be retained from an agency or be some other person approved by Dr. [NZ].
ii.The supervisor confer with Dr. [NZ] prior to the first meeting and at any time thereafter,
iii.That the [father] pay all costs associated with the meeting.
iv.Only English be spoken if the supervisor cannot speak Greek.
The ICL was discharged by the orders.
Sadly, the situation for the parties and their children has remained complex and there are continuing serious difficulties in the relationships with each other. The focus of these reasons will be restricted to those events strictly relevant to the orders appealed and the grounds of appeal ultimately pursued by the father.
The orders made on 23 July 2014 were after a hearing across a number of dates – 22-24, 27 May 2013, 27 March 2014 and 21 May 2014. It was a complex trial. Previous proceedings including Federal Magistrates’ Court proceedings in 2008, Family Court proceedings in 2010, expert reports and evidence from six different sources were considered. Of particular importance was the report of Dr NZ, the family therapist. As previously noted, Dr NZ had been treating the children over a number of years.
Both parties were represented by counsel during the trial before Bennett J.
Before the decision in the substantive matter could be delivered, the parties appeared before Bennett J on 17 July 2014 by way of urgent oral application by the father. The curious circumstances of this interim hearing will be discussed in further detail below. The father was at this time self-represented and the mother was represented by counsel.
On 17 July 2014 the primary judge dismissed the father’s oral application for interim parenting orders and on 23 July 2014 the primary judge dismissed the father’s application to re-litigate the consent parenting arrangements.
Preliminary Issues
For a number of reasons, it is necessary to consider the nature of the orders made by the judge, interim and final, to ascertain the court’s power to deal with them on appeal.
The father’s appeals were previously listed before the Full Court on 2 March 2015. At that hearing, the father advised the court that on 16 February 2015 the children were placed in the care of the Department of Health and Human Services (“the DHHS”) and that proceedings were pending in the Children’s Court of Victoria. The father also indicated he wished to adduce further evidence in support of his appeals.
In the absence of evidence regarding the children’s current circumstances and it not being clear that the DHHS had been made aware of the father’s appeals, the Full Court adjourned the matter and made the following orders:
1.That the appellant [father] forthwith serve the Director of Child Protection of the Department of Human Services with all material relevant to the appeals (including Notices of Appeal, Appeal Books and Reasons for Judgment of the trial judge) no later than 4pm Wednesday 4 March 2015.
2.Request the Appeal Registrar to write to the Director of Child Protection of the Department of Human Services requesting that they advise the Court if one or both of the children is in the care of the Department of Human Services and if so on what basis they are in care.
3.If the children are in the care of the Department of Human Services under a child welfare law, does the Director of Child Protection consent to the continuance of the appeals.
…
5.The appeal is [stood over] at a date to be fixed.
On 6 July 2015 the DHHS confirmed in an email to the Registry that:
…there are current proceedings that have been issued in the Children’s Court of Victoria, and that we do not consent to the Father’s Appeal insofar as it concerns parenting matters. If possible, the department would seek to have the appeal (insofar as they relate only to parenting matters) struck out with a right of reinstatement at the next occasion.
The appeals were re-listed. We note that although the father was instructed by the Full Court on 2 March 2015 that if he wished to adduce further evidence, he would need to do so in the appropriate way by application to the court, the father has failed to do so (Transcript, 2 March 2015, p 5, l 24).
The position of the father’s appeal in regards to the parenting orders is complicated by the children’s present circumstances. Section 69ZK of the Act restricts this Court’s ability to make orders for a child who is under the care of a person under child welfare law:
Child welfare laws not affected
(1)A court having jurisdiction under this Act must not make an order under this Act (other than an order under Division 7) in relation to a child who is under the care (however described) of a person under a child welfare law unless:
(a)the order is expressed to come into effect when the child ceases to be under that care; or
(b)the order is made in proceedings relating to the child in respect of the institution or continuation of which the written consent of a child welfare officer of the relevant State or Territory has been obtained.
(2) Nothing in this Act, and no decree under this Act, affects:
(a)the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
(3)If it appears to a court having jurisdiction under this Act that another court or an authority proposes to make an order, or to take any other action, of the kind referred to in paragraph (2)(a) in relation to a child, the first-mentioned court may adjourn any proceedings before it that relate to the child.
Mr Foo (instructed by the DHHS as amicus curiae) appeared before us and informed the Court that the children remain in foster care pursuant to interim orders. There will be a final hearing in the Children’s Court of Victoria in September this year.
After the position of the DHHS was conveyed, we discussed with the father which parts of the appeal he wished to pursue. The father made it clear that he was not wishing to appeal the order referring to the change of residence on an interim basis or the dismissal of his application to re-open the substantive parenting matter. The father indicated that he was content with the issues relating to the future living arrangements for the children being dealt with by the Children’s Court.
The orders from which the father wishes to appeal are as follows:
a)The interim orders made on 17 July 2014:
3.It being the case that pursuant to paragraphs 5 and 8 of the Order made on 2 March 2012 (which is attached) there are injunctions in force against the [father] under section 68B of the Family Law Act 1975 for the personal protection of each of the children, pursuant to section 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the [father] has breached the injunctions (or any of them) the police officer may arrest the [father] without warrant and the [father] be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date AND IT IS NOTED that pursuant to s 122AA a person who is authorised or directed by a provision of the Family Law Act 1975 , or by a warrant issued under a provision of the Act, to arrest another person may use such reasonable force as is necessary to make the arrest or to prevent the escape of that person after the arrest.
8.The [father] pay the [mother]’s costs of and incidental to this day fixed in the sum of $4,725.00 and such costs be paid within 30 days.
(original emphasis)
b)The substantive orders made 24 July 2014:
(2)Pursuant to section 118(1)(c) of the Family Law Act 1975 the applicant father be restrained from instituting proceedings under the Family Law Act for parenting orders without leave of the Court.
(5)The father pay the costs of the attendance by Dr [NZ] at court in May 2013 to give evidence fixed in the sum of $1,800 unless otherwise agreed.
Mr Foo indicated that as no orders affecting the children’s current living arrangements were being sought there was no objection to the appeal being heard. At our request, an email was sent to the Appeals Registrar on 13 July 2015 from Mr Foo as senior solicitor of the Child Protection Litigation office – the relevant parts being as follows:
We further confirm that the children [M] born [in] 1999 and [D] born [in] 2002 are currently on interim Orders made in the Children's Court of Victoria on 10 July 2015 and have been placed with a foster carer.
We understand that the Full Court is currently hearing the appeal by Mr [Prantage] on the following:
1) The issue of Dr [NZ]'s costs
2) The Order by Justice Bennet in relation to Mr [Prantage] being a vexatious litigant
3) The Order by Justice Bennet that Mr [Prantage] may be arrested without warrant
We hereby consent to the appeal (with references SOA 49 of 2014 and SOA 50 of 2014) to continue, insofar as they do not relate to the living arrangements for the children of the relationship. …
There is accordingly no impediment to us determining all parts of the appeals that the father wishes to pursue.
Leave to Appeal
At the outset, it is necessary to consider if leave to appeal is required for the substantive appeal in relation to the s 118 order - that the father’s proceedings were vexatious.
Leave to appeal is required for interlocutory orders, other than orders in relation to child welfare matters (see s 94AA(1) and reg 15A of the Family Law Regulations 1984 (Cth).
The father was restrained from instituting proceedings for parenting orders.
Section 118 of the Act in its current form reads:
Frivolous or vexatious proceedings
The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings; and
(b) make such order as to costs as the court considers just.
The s 118(1)(c) to which the primary judge refers was amended by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (“the Amendment Act”). That former section reads:
SECTION 118 FRIVOLOUS OR VEXATIOUS PROCEEDINGS
(1)The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings – order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).
The accompanying explanatory memorandum explains the purpose of the amendments was to:
… provide a consistent and more comprehensive legislative framework for the federal courts to deal with vexatious proceedings brought by persons who have frequently instituted or conducted vexatious proceedings in Australian courts and tribunals, or who are acting in concert with others who have done so.
The Amendment Act received Royal Asset on 11 December 2012 and the relevant schedule relating to vexatious proceedings commenced 11 June 2013 (Schedule 3). As noted in the Amendment Act, Schedule 3 only applied to applications initiated on or after that date. As correctly concluded by the primary judge, the father’s application was filed 27 December 2012 and the current form of s 118 does not apply (at [87]). The mother’s response to the father’s application, seeking the father be restrained pursuant to s 118(1)(c), was filed 26 April 2013.
The order is clearly interlocutory. However, in our view, leave to appeal is not required, as it affected the father’s right to institute further proceedings for parenting orders, which in our view brings it within the ambit of the expression “a decree in relation to a child welfare matter” in reg 15A.
Grounds of Appeal
The father lists ten grounds of appeal in his Notice of Appeal of the interim decision, and lists eight grounds of appeal in his Notice of Appeal of the substantive decision. The grounds of appeal are more in the nature of submissions and are lengthy. By reference to both the written and oral arguments of the father, it is more useful to summarise the grounds across both appeals as follows:
a)That the primary judge erred in dismissing the father’s urgent oral application for an interim change of residence of the children because she should not have relied on the evidence of Dr NZ;
b)That he was not afforded procedural fairness and the judge should have appointed a new ICL, interviewed the children herself and not accepted the evidence of Dr NZ;
c)That the primary judge erred in making an order pursuant to s 68C of the Act for the father’s arrest without a warrant because the father was obliged to take the action he did to protect the children;
d)That the primary judge erred in making an order pursuant to s 118(c) of the Act restraining the father from instituting proceedings for parenting orders without leave of the Court;
e)That the primary judge was biased against the father; and
f)That the primary judge erred in awarding costs to the mother and Dr NZ.
It is important to note that although the father on appeal challenged the failure of the judge to appoint an ICL for the children, no new application was made to the judge to appoint an ICL nor was the judge asked to interview the children herself. Central to the argument of the father is the acceptance by the judge of the evidence and intervention of the children’s treating psychologist Dr NZ.
Reasons of the Primary Judge
Interim Decision
On 17 July 2014, the father appeared at the Family Court of Australia, Melbourne Registry with the children, despite consent orders which restrained him from communicating with the children and required the immediate return of the children to the mother if they came into his care. He appeared before Bennett J to make an urgent oral application for a variation of those consent orders, so that the children would live with him and the mother have only supervised time with them.
While there is some uncertainty about the events on this day, it seems that at some time in the morning of 17 July 2014, the children arrived at the paternal grandparents’ home and contacted the father. The father arranged to meet them at the office of his then solicitor, who he says advised him to make an urgent oral application for an interim change of residence for the children (at [10]). The primary judge summarised the children’s complaints about the mother as follows:
9. …
• they had been locked up by their mother;
• they had been abused;
• they had been denied their freedom; and
•they “cannot stand living in that place any longer” under the mother’s conditions.
It was entirely a coincidence that the mother’s lawyers became aware the father was at the court with the children. Their respective schools did not record their absence and did not inform the mother. Counsel for the mother made an oral application for the children to be returned to her care immediately. At the suggestion of Bennett J, she also applied for a power of arrest order pursuant to s 68C of the Act to apply to the injunction in place under Order 5 and Order 8 of the 2 March 2012 consent orders.
In addition to the children’s complaints allegedly raised about the mother, the father also argued that the children had been threatened by Dr NZ that they would never see him again unless they communicated more with their mother (at [15]) and that the children had intercepted an email between Dr NZ and the mother, where Dr NZ allegedly advocated the mother scream and yell at D (at [16]).
At the urgent interim hearing, the court arranged for Dr NZ to give evidence by telephone link. Dr NZ was able to contextualise certain statements she made to the mother. It is pertinent to note that at the time of this interim hearing, therapy had been suspended pending an investigation by DHHS (at [20]). Dr NZ explained to the court the email to the mother advised her to deal with D “more firmly”. In her reasons the judge explained part of Dr NZ’s evidence:
19.Some of the distinguishing features include the fact that the Department of Human Services has entered into a contract with [M] to regulate [M’s] behaviour in a certain way. Dr [NZ] considers that [M’s] agreement with [DHHS] is a check on [M’s] behaviour and one which the [mother] does not want to interfere with at this point. But there’s no such agreement with [D], and if he acts in a disrespectful, naughty or silly manner, Dr [NZ’s] advice to the [mother] was that he should be censured for it and that the [mother] chastising him with a raised voice is likely to be most effective.
…
22.Dr [NZ’s] evidence was that, in her assessment, [D] is vulnerable to being dominated by [M] and that this is now occurring, much to [D’s] detriment. For instance, [M] knows that her contract with [DHHS] precluded her being able to desecrate the [mother]’s shrine to the maternal grandmother so [M] had commenced telling [D] to desecrate the shrine.
In response to allegations by the father that Dr NZ had touched, pushed or shoved the children, the primary judge accepted the evidence of Dr NZ that this had not happened (at [24]). Dr NZ also gave evidence that despite the allegations and investigation by the DHHS, the children did have some affection towards the mother.
The father was afforded the opportunity to cross-examine Dr NZ and did so, however Bennett J accepted the evidence of Dr NZ.
A police officer from Victoria Police also gave evidence. The police officer was one of the attending officers called to the court when the father arrived with the children. The police officer confirmed there was an intervention order in force against the father, precluding him from approaching the children (at [26]). The police officer was also able to clarify the events of that morning, having recorded the statement of the eldest child:
28.The [police officer] recorded that [M] had said that she is not happy at her mother’s home, and that she had taken an opportunity to run away today. Her precise words were that she could not stand living at home with the [mother], “I can’t be there.” [M] complained that the [mother] said bad things about the [father] in her presence and in the presence of others, that she hasn’t seen her father for two months and that on the weekends they were locked in the house and had no keys to get out of the house.
Despite an opportunity to do so, the transcript reveals the father did not cross-examine the police officer. Had he chosen to do so, the father could have put to him the allegation he made on appeal, that the children (especially the son) were in very poor physical condition.
As we have already mentioned, the father also contends in the appeal that the judge should have interviewed the children herself to see their physical appearance. The transcript reveals that the father made no such application to the judge.
As recounted in the reasons for the substantive orders, despite numerous complaints to the DHHS it was concluded that the children had not been abused by the mother:
28.The matter next came before me for mention on 21 May 2014. The [DHHS] appeared as amicus curae. Counsel for [DHHS] informed me that a letter had been prepared dated 20 May 2014 summarising their contact with the family and concluding that the children had not been abused by the mother. Both children had been assessed by a paediatrician, [DHHS] had visited the mother’s home after the children had alleged that they were not fed but were satisfied that the mother always had food available to the children in the fridge and in their schoolbags and that there was no substance to the allegations about the mother.
In deciding whether there should be an immediate change of residence, the primary judge considered the children’s best interests pursuant to s 60CC of the Act. It was noted that there was no order at this time for equal shared parental responsibility nor did the father apply for one. In this regard, the primary judge dispensed with the requirements under s 61DA of the Act (at [32]). The need to protect the children from physical and emotional harm or abuse was noted, and the benefit of the children having a meaningful relationship with both parents was considered.
The primary judge accepted Dr NZ’s evidence that D is at risk of being dominated by M and the father would not appropriately intervene in that dynamic (at [36]). The mother was found to care for the children as best as she could, which was “far in excess of the father’s abilities and motivations to do so.” (at [37]). The primary judge concluded it would not be in the children’s bests interests to change their primary residence (at [39]).
The primary judge considered whether an order should be made for a power of arrest without warrant to attach to the injunctions. The primary judge appropriately considered the circumstances surrounding this application:
52.The orders made in March 2012 clearly contemplated the very situation that occurred this morning. The current order could not be clearer inasmuch as it provided that, upon the children contacting the [father], he was required to “do all things required to ensure the children are returned immediately to the home of the [mother]”. He did not do so. On his own evidence, he took the children first to a solicitor […], had one of the children talk to the solicitor and then brought the children to the Court. He recognised, however, that the children could have been returned immediately to the [mother], a circumstance that he described to me today as “I could have ignored the children” or words to that effect.
53.The [father] does not in any way appear to have attempted to contact the [mother] or to return the children to the [mother]’s care. It is fortuitous that the solicitor for the [mother] or someone from his office recognised the [father] and the children at court. In these circumstances, it seems to me that it is appropriate for the welfare of each of the children to augment the force of the injunction made on 2 March 2012 by attaching to it a power of arrest. I will do so.
In view of the history of the matter and the circumstances in which the children were brought to the court, the order was entirely proper.
Turning to the issue of costs, the primary judge explained that while normally parties would bear their own costs, there were circumstances to justify a costs order. Counsel for the mother argued that the costs incurred for the interim proceedings would be $6,400.
The father opposed any costs order and confirmed he was familiar with the factors affecting costs orders contained in s 117(2A) of the Act. Although both parties were found to be unable to meet a costs order, the primary judge found that “lack of ability to pay is not a defence” (at [60]) and concluded:
61.I take into account that these proceedings were necessitated by the failure of the [father] to comply with the injunctions that I have earlier referred to and I also take into account that he has been wholly unsuccessful in these proceedings in terms of his oral application.
The primary judge refused to order costs on an indemnity basis, and instead ordered costs fixed in the sum of $4,725.00 (at [66]).
Substantive Decision
The orders made by Bennett J on 23 July 2014, were a week after the interim hearing was heard and determined. The primary judge delivered an extensive judgment, which thoroughly assessed the circumstances of the parties and their children at that time. The primary judge also expressly incorporated the reasons from the interim decision on 17 July 2014 into the substantive reasons (at [43]). It is not necessary to repeat in detail the findings relating to parenting matters, and instead we will focus on those reasons relevant to the orders now appealed and the grounds of appeal.
At the outset the judge identified these issues for her determination:
a)the father’s application filed 27 December 2012 for the consent orders relating to the children be set aside and the matter be reheard – the judge dismissed this application.
b)an application by the mother that the father be restrained from instituting further proceedings without leave – the judge granted this application and made an order pursuant to s 118(1)(c) .
c)costs – the parties were ordered to file written submissions concerning the costs of the substantive proceedings, save for the costs of the attendance by Dr NZ at the hearing in May 2013 which the husband was ordered to pay in the fixed sum of $1,800.
Before analysing the reasons of the primary judge in making an order pursuant to s 118(1)(c) of the Act, it is necessary to give the mother’s application some context. A cornerstone, as described by the primary judge, was an assertion that Dr NZ had sent the following email:
70.The email from [M] to the father refers to an email purportedly sent by Dr [NZ] to the mother. [M] purports to extract the text of the alleged email from Dr [NZ] to the mother, as follows:
Dear [Ms Prantage],
In response to your last email don’t worry I have more power than the kids. I will tell the court that things with you and the kids are going fine even though the kids don’t talk to you and when they come to me they just say that you hurt them and that they want their father back, but I will tell the court otherwise. Don’t worry, I will make sure they don’t go back with [Mr Prantage].
Regards,
[Dr NZ]
71.Dr [NZ] advised the parties’ representatives and the independent children’s lawyer that she had not written the email. She pointed out that her given name was mis-spelt insofar as she shortens [her name differently to that used in the email]. The mother maintained that she had not received any such email.
…
74.There is simply no cogent evidence in this case that Dr [NZ] wrote the email as the father continues to allege. The fact that the father persists with his allegations against Dr [NZ] in the face of her consistent denials, her sworn evidence on 24 May 2013 and his failure to recognise the improbability of Dr [NZ] having written such an email raises serious concerns about the father and, I find, is particularly relevant to the matters of which I must be satisfied in the context of s 118(1)(c) of the Act. It is also helpful in my assessment of the father’s evidence about the physical and emotional deterioration of the children since they have been in the father’s care and the extent to which I ought to accept that evidence where it conflicts directly with the evidence of the mother, Dr [NZ] and the Department of Human Services.
75.Dr [NZ] is an experienced psychologist, well known to the Court. She understands her responsibilities to the Court as an expert witness in parenting cases. The father’s allegation that Dr [NZ] wrote to the mother as [M] had reported would, if true, likely constitute an attempt by Dr [NZ] to pervert the course of justice and leave her open to prosecution for a criminal offence. I expect that it would also end her career as an expert witness in children’s matters. In order for me to accept that Dr [NZ] had written the email, as the father persists in alleging, I would need to be satisfied at the highest standard of the civil burden of proof. Having now heard the evidence and the father’s cross examination, I am not so satisfied.
At [87] the primary judge considered the legal principles relevant to granting an injunction under s 118(1)(c) of the Act. The mother argued that the proceedings brought by the father in the substantive matter, and the interim proceedings, were brought vexatiously (at [89]). As previously noted, the judge concluded (at [87]) the order should be made pursuant to s 118 as it appeared before the new version commenced on 11 June 2013. It was not suggested to us by the father that an incorrect section had been applied.
The primary judge considered the requirements of s 118 of the Act, citing the decision of the Full Court in Oscar & Traynor [2008] FamCAFC 158. That Full Court decision confirmed the source of power is found under s 118 together with r 11.04 of the Family Law Rules 2004, and further that such power should be used appropriately (per the comments of Kirby J in ReAttorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 at 31-32).
The requirements for an order under s 118(1)(c) were discussed, the primary judge referred to DJC v SJS and Another (2005) 34 Fam LR 329. At [228] – [237] the primary judge determined the father’s application was vexatious within the meaning of s 118 of the Act.
To conclude the father’s proceedings were vexatious, the primary judge had regard to his actions throughout the course of the hearing and also the interim hearing. The father’s allegations against Dr NZ were “unfounded” and “misguided”. His persistence of these allegations without any evidence was found to be vexatious:
229.I am satisfied that the father’s allegation about the email supposedly emanating from Dr [NZ] is as unfounded as it is misguided. Further, the father’s persistence with the allegation in the face of Dr [NZ’s] denial, sworn evidence and lack of any probative evidence to support it, is vexatious. My impression is that it is a hostile reaction by the father to being confronted with expert evidence which he cannot accept or may even lack the insight and objectivity to assess and understand. That is a serious shortcoming of the father because Dr [NZ’s] focus is actually the welfare of the children rather than on his welfare and, by virtue of the father ignoring Dr [NZ’s] assessment, he denies the children the benefit of it.
The primary judge also had regard to other matters, summarised as follows:
231. …
a) The final order which the father seeks to reverse was sought by consent at a time when the father was represented by lawyer and counsel;
b)I do not accept that the father’s assertions that he was bullied by Ms Benjamin of counsel into consenting to the final order and am satisfied that he made this assertion to deflect the point, well made, that it was a consensual resolution of the matter;
c)The father twice sought to support the current application with voluminous material which he then abandoned or largely abandoned but not before the mother incurred very considerable expense in having her lawyers read everything he relied upon it and formulate objections to it;
d)Much of the material relied upon by the father in support of the application pre-dated the final order and, self-evidently, did not constitute a change in circumstances;
e)In seeking to rely on the statements which the children made to him during three supervised visits and the alleged email from Dr [NZ], the father has demonstrated that he accepts and acts upon utterances by the children without appropriate scrutiny or any analysis of how likely the statements are to be truthful or accurate.
It was concluded that the parenting proceedings had no prospect of success and there was no merit in re-litigating the parenting orders currently in place. The primary judge ordered that the father be restrained from filing further parenting proceedings without leave (at [234] – [236]).
The primary judge invited the parties to make written submissions on their applications being orders for indemnity costs.
As the father required Dr NZ for cross examination in May 2013 it was determined he should be liable for the costs of her attendance, fixed in the sum of $1,800.00 (at [238] – [240]), on the basis of Dr NZ’s hourly rate of $400.
Conclusions
Reliance on expert evidence
The essence of the father’s argument is that the judge should not have relied on the evidence of Dr NZ. He complains about her conduct bitterly. While it is correct that the judge did rely on the evidence of the expert, the father did not demonstrate to us why the judge should not have done so. The father was unable to show that there was no proper basis for the evidence of Dr NZ other than his own strongly held opinions.
In the absence of any other evidence properly challenging the evidence of an expert or evidence which would indicate the improbability of that evidence, a judge cannot be said to have erred in accepting that evidence. There was no other expert evidence put to the primary judge during either the interim or substantive hearing. While the father clearly disagrees with the findings of Dr NZ, he was unable to point to other evidence or reasons why the judge should not have accepted the opinion of Dr NZ. Nor was it suggested that the primary judge had failed to have regard to other evidence.
The principles applying to the intervention by an appellate court on the exercise of the discretion of a primary judge are well-known. In House v King (1936) 55 CLR 499 the High Court said (at 504):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
(citations omitted)
Failure to appoint an ICL
Prior to the final hearing before the primary judge commencing on 13 May 2013, the father on 13 March 2013 did ask for an ICL to be appointed. Based on the evidence of Dr NZ, the judge refused the application.
As previously discussed at [36] of these reasons, the transcript reveals the father did not renew that application to the primary judge for an ICL to be appointed or for the judge to interview the children.
Arrest Order
The father submits that the primary judge erred in making an order pursuant to s 68C of the Act, for his arrest without warrant if he is found to breach the injunctions restraining his contact with the children. He argues:
5.The fact that the [father] was advised by a person of Law to attend the Family Court with his children when they ran away to him complaining of abuse would not be a reason why an Arrest order should be attached to the Current orders. This Arrest order was placed by Her Honour in an attempt to finally totally discredit the [father] and silence him from any further proceedings that he may bring to This Court regarding children’s issues. The [father] was certainly not going to take his children back to the mother, in other words, to the place of the alleged abuse, so the [father] had no choice but to do the next best thing and let Her Honour decide. The fact that these children have complained on numerous occasions, have shown their physical bruises to Police, have complained to [DHHS], have run away on numerous occasions, look malnutritioned [sic] and dishevelled, should be enough evidence that all is not right in their place of residence. …
As already mentioned, the father did not place before the primary judge any such evidence. He chose to bring the children to the court rather than a doctor, hospital or to the police.
As previously noted, Order 5 of the consent orders made on 12 March 2012 restrained the father from communicating or attempting to communicate with the children in any manner including text messages, email and social media. In the event the children do come into his care, Order 8 compels the father to immediately return them to the mother.
There is no doubt that he did not, as required, immediately contact the mother and return the children. The father argues he could not return them in circumstances he perceived they were being subject to abuse. He allowed the children to speak directly with the solicitor, and advised the court that he was told to come and make an urgent oral application (Transcript, 17 July 2014, p 3 – 4).
The mother had no notice of the application. It was only by chance that her solicitors, in court for another matter, recognised the father and the children and were able to arrange for counsel to appear for the mother. The mother was not even made aware the children were not at school as expected.
The primary judge had heard evidence from the father and Dr NZ as to the allegations of abuse. The primary judge also had regard to evidence given by DHHS in the substantive matter, which had conducted an investigation into the alleged abuse. The judge was satisfied, and concluded, there was no basis to these claims. It was recognised the children had a difficult relationship with their mother (albeit often negatively influenced by the father) but this was held in context of the overall substantive proceedings. There was no evidence to support the claims made by the father and the primary judge dismissed his application for an urgent change in residence.
It is clear that the judge was concerned that there might be a repeat of the events on that day. The question is whether the consent orders laid a proper basis for an order for arrest without warrant. Section 68C of the Act provides:
Powers of arrest
(1) If:
(a)an injunction is in force under section 68B for the personal protection of a person (the protected person); and
(b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:
(i)causing, or threatening to cause, bodily harm to the protected person; or
(ii)harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
Note: Section 122AA authorises the use of reasonable force in making an arrest.
(2)For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person.
(3)Subsections 114AA(3), (4), (5) and (7) apply in relation to a person arrested under this section as if:
(a)the person had been arrested under subsection 114AA(1) because he or she was believed to have breached an injunction granted under section 114; and
(b)the person on whose application the injunction was granted under section 68B were the person on whose application the injunction under section 114 had been granted.
(original emphasis)
The primary judge found that the events of 17 July 2014 justified the need for the order. Dr NZ gave evidence that it was her belief the father has been secretly communicating with the children (Transcript, 17 July 2014, p 19, l 25 – 29). The father has shown complete disregard for the injunction. He made no attempt to contact the mother once he was made aware of the situation. There was no basis found to the allegations and no evidence other than that of the father in support of the claims.
The decision to make an order for a power of arrest was not made lightly. The judge sought Dr NZ’s opinion of what impact that might have on the children:
Can you tell me if you perceive – and I may not have any choice about this. I haven’t made up my mind yet, but in the event that a power of arrest attaches to the previous injunction, should the children be told that if they are seen with their father or anyone who could be thought to be acting on their behalf that their father will be taken into custody and held by police?---Yes.
Would that have some impact on them?---Yes, your Honour. They need to be told if – these children are so involved in this conflict that not explaining to them – I mean, the whole narrative – the children’s narrative has been about lies and truths, okay? About who is telling the truth. And they purportedly purport to believe that their father’s version is the truth but through all of this the children have been lying terribly and know they have been lying and they know they’ve been lying to [DHHS] about this, they know that they’re not being believed anymore and that’s why my therapy with the children really can’t really start in any intensive way until your judgment comes out – until we can say to them definitively and explain to them that lying doesn’t work and it can’t work and this is what – this is what the judge says about that.
(Transcript, 17 July 2014, p 19 – 20, l 41 – 25, 1 – 10)
This ground of appeal has no merit.
Section 118 Order
The father argues that the primary judge erred in declaring his proceedings were vexatious. Entwined with this complaint are a number of allegations of bias, procedural unfairness and a failure to have regard to the “abuse” the children have suffered.
The judge gave substantial reasons in finding the proceedings were vexatious and making the order pursuant to s 118 (at [87] – [92] and [228] – [237]). The analysis has been discussed in detail earlier in these reasons.
In making those findings; the primary judge listed a number of examples of the father’s conduct including his persistence in pursuing allegations against Dr NZ with no evidence and his attempts to re-open a matter which had been finalised by consent. There is no merit in this ground of appeal.
Bias
The father has made several accusations of bias against the primary judge. These were rejected by the primary judge, who found:
35.The matters alleged by the father did not occur as he represents. I am satisfied that a fair minded observer would not, in the circumstances of this case, conclude that I have brought anything other than an impartial mind to the task of identifying the issues and determining how the evidence advances one case over the other. Accordingly, I have not acceded to the father’s application that I recuse myself from these proceedings.
It is not enough to argue a decision maker is biased because they did not find in your favour. The father did not pursue this ground in his oral submissions, but in any event there is no merit in this ground.
Costs Orders
As has often been said in appeals from costs orders in this court, the discretion to order costs is wide. The judge gave reasons for the orders in this case in conformity with s 117(2) of the Act.
The outcome and costs
No part of the appeals from the interim and substantive orders has merit and the appeals should be dismissed.
Although the appeals have been entirely unsuccessful, there will be no order for costs as the wife advised us that she would not be seeking costs if the appeals were dismissed.
THACKRAY J
I have had the benefit of reading the draft judgment of May and Macmillan JJ. I am in general agreement with their Honour’s reasons and I also agree with the orders they have proposed.
I wish only to make some brief comments in relation to the order of the primary judge by which she attached a power of arrest to the two injunctions that were made by consent by Cronin J on 2 March 2012.
Section 68C of the Family Law Act 1975 (Cth) relevantly provides:
(1) If:
(a)an injunction is in force under section 68B for the personal protection of a person (the protected person); and
(b)a police officer believes, on reasonable grounds, that the person (the respondent) against whom the injunction is directed has breached the injunction by:
(i)causing, or threatening to cause, bodily harm to the protected person; or
(ii)harassing, molesting or stalking that person;
the police officer may arrest the respondent without warrant.
...
(2)For the purposes of subsection (1), an injunction granted under section 68B is an injunction for the personal protection of a person if, and only if, it is expressed to be for the personal protection of the person...
The terms of the injunctions made in 2012 have been set out in the reasons of May and Macmillan JJ. Those injunctions were not “expressed to be for the personal protection” of the children, and the question therefore arises whether the primary judge had power to attach a power of arrest to them.
The relevant order of the primary judge was originally extracted in these terms:
It being the case that pursuant to paragraphs 5 and 8 of the Order made on 2 March 2012 (which is attached) there are injunctions in force against the husband under section 68C of the Family Law Act 1975, if a police officer believes, on reasonable grounds, that the husband has breached the injunctions (or any of them) the police officer may arrest the husband without warrant and the husband be brought before this Registry of the Court or any other court exercising jurisdiction under the Act, on the first day on which the Court next sits after the arrest, or as soon as practicable after that date...
However, when the primary judge settled her ex tempore reasons for judgment, she made the following observations about the order that had been extracted:
I note that the Order that was engrossed referred incorrectly to the injunction being “under section 68C”. It also omitted a necessary reference to the injunction being “for the personal protection of a child”. I have corrected the Order and direct that an amended version now issue.
The order was duly amended, and the final form of the order appears in the judgment of May and Macmillan JJ.
Although there were many complaints raised by the husband, he did not argue that the primary judge lacked power to make the order she did. Notwithstanding the absence of complaint, I have reservations whether it was open to her Honour to attach a power of arrest to the original injunctions. I would have thought that she could only do so if the original injunctions expressly stated they were for the “personal protection” of the children.
The issue having not been raised in the Notice of Appeal, there was no mention of it during argument. I accept that it would be unfair to the mother if we were to consider allowing the appeal on the basis of a matter that was not the subject of argument. Furthermore, the question is of little more than academic interest, now that the Children’s Court of Victoria is seized of the matter and will be revisiting arrangements for the children in the near future.
Finally, I note that the Family Law Council is presently considering the following Terms of Reference from the Commonwealth Attorney General:
1.The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation).
2.The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes. ...
It might be thought that the present case is an excellent example of the irrationality of the present system, which has permitted this case to have been effectively removed from the Family Court of Australia, where it has been the subject of litigation since 2008, and placed before a different tribunal, which will need to consider the same issues that have already been the subject of numerous decisions both at first instance and on appeal.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Macmillan JJ) delivered on 24 July 2015.
Associate:
Date: 24 July 2015
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