Ridge & Hurley
[2024] FedCFamC1A 206
•7 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ridge & Hurley [2024] FedCFamC1A 206
Appeal from: Ridge & Hurley [2024] FedCFamC2F 569 Appeal number: NAA 129 of 2024 File number: ADC 2487 of 2023 Judgment of: SCHONELL J Date of judgment: 7 November 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant appeals from orders dismissing the appellant’s Contravention application – Procedural fairness – Where no error is demonstrated – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt 7, ss 67, 69ZN, 69ZT, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 13.23(2)(a)
Cases cited: Allwright & Allwright (2024) FLC 94-187; [2024] FedCFamC1A 79
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75; [2009] HCA 43
Keehan & Keehan (2019) 60 Fam LR 276; [2019] FamCAFC 250
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lietzau & Lietzau [2024] FedCFamC1A 94
Metwally v University of Wollongong (1985) 158 CLR 447
Millar and Millar (1983) FLC 91-326
Nada v Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Neil v Nott (1994) 68 ALJR 509; [1994] HCA 23
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Ridge & Hurley [2024] FedCFamC2F 569
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34
Number of paragraphs: 72 Date of hearing: 1 November 2024 Place: Sydney via audiovisual link The Appellant: Self-represented litigant Counsel for the Respondent: Mr Praolini Solicitor for the Respondent: CG Family Law ORDERS
NAA 129 of 2024
ADC 2487 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR RIDGE
Appellant
AND: MS HURLEY
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
7 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 19 July 2024 is dismissed.
2.The appellant is to pay the respondent’s costs in the sum of $4,268 within 42 days payable to the Legal Services Commission of South Australia.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ridge & Hurley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Notice of Appeal filed 19 July 2024 the appellant father (“appellant”) appeals orders made 26 March 2024 dismissing the appellant’s Application – Contravention filed 6 June 2023 and that the appellant pay the respondent’s costs.
The appeal is opposed by the respondent mother (“the respondent”).
For reasons that follow, the Notice of Appeal will be dismissed.
BACKGROUND
The parties are the parents of the subject child born 2015.
The parties have been in conflict about the parenting arrangements for the child since shortly after she was born, such that on 28 January 2016, the appellant commenced proceedings for parenting orders.
On 24 October 2017, a final Intervention Order was made by the Magistrates Court of South Australia protecting the respondent from the appellant.
On 7 May 2020, final parenting orders were made that provided for the respondent to have sole parental responsibility, for the child to live with the respondent, and for the child to spend time with the appellant each alternate Sunday for six hours with changeover effected through a contact service. The orders also provided for the parties to communicate by use of a communication book passed at changeover and through an app.
The appellant contends that he has not spent time with the child since early 2020 and that the respondent has not registered with the app.
On 19 May 2023, the appellant filed an Initiating Application to vary the final parenting orders seeking time each alternate weekend and during school holidays.
On 6 June 2023, the appellant filed the Application–Contravention alleging 68 breaches of orders made on 21 June 2018, 5 February 2020 and 7 May 2020.
On 10 November 2023, of the original 68 grounds, many with withdrawn, leaving 22 grounds.
On 15 December 2023, the orders for the appellant’s time with the child were suspended pending determination of his application filed 19 May 2023.
On 5 February 2024, the matter was listed for hearing before the primary judge, such hearing to take place on 26 March 2024.
A few days before the hearing, the appellant emailed the Court seeking an administrative adjournment in circumstances where he was no longer represented.
On 25 March 2024, the appellant filed a 160-page affidavit. The affidavit had not been served on the respondent.
On three prior occasions, the appellant had been advised by Court Order of the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) and that he would not be permitted to personally cross examine the respondent.
At the hearing, the appellant did not press his foreshadowed adjournment.
It transpired during the hearing that by letter dated 28 July 2020, the contact service had indicated that it would not facilitate a changeover and consequently from that date, the orders could not be implemented. It also transpired that between 25 October 2020 and 11 December 2022 the appellant had been incarcerated.
The primary judge’s reasons (Ridge & Hurley [2024] FedCFamC2F 569) record:
9There is no way in which this hearing can proceed efficiently or properly in circumstances where the father is unable to cross-examine the mother in any respect, and to conduct a hearing in these circumstances would seem to be difficult if not impossible.
10For the purpose of today’s hearing, I raised with [Mr Ridge], who appears for himself, the utility of proceeding with the application at all. I also raised with him the merits of his application. I was usefully assisted by [Ms P] of counsel, who appears for the mother.
11[Ms P] tendered as exhibits 3 and 4 respectively a copy of a letter from [C Centre] of 28 July 2020 (exhibit 3) and a copy of the IVO (exhibit 4).
12In relation to exhibit 3, its relevance is that it is clear that from 28 July 2020, [C Centre] ceased to make their contact service available for the purpose of changeovers. The orders of his Honour Judge Heffernan of 7 May 2020 had specifically provided that changeovers occur at the [Suburb E] Children’s Contact Service or the [Suburb D] Children’s Contact Service (both run by [C Centre]) – and the reality is that from 28 July 2020, that service was no longer available to these parties.
13It is also apparent that the father was incarcerated in relation to some dishonesty offence or offences from October 2020 until December of 2022. That is to say, he was absent from his child’s life for some two (2) years and two (2) months, entirely for reasons unrelated to any specific conduct of the mother in terms of not promoting or facilitating a relationship between he and the child.
14Against this background, I note also that the father has filed an Initiating Application on 19 May 2023, which is returnable before his Honour Judge Brown. Those are what might be called the ‘substantive (or primary) proceedings’. The current Contravention proceedings are, in many respects, a diversion. In the primary proceedings, the father is seeking to re-open the orders and to extend his time with the child to alternate weekends and half holidays or perhaps even for equal time. The mother is running a “no time” case, and a Family Report has recently been commissioned and will be prepared shortly. The matter is back before his Honour Judge Brown next month, at which time, presumably, there will be an order made either for dispute resolution or to perhaps set the matter down for a final hearing.
…
16I turn then to the counts that are presently “live” before the Court. It is evident that from contravention 37 and onwards, that the letter from [C Centre] makes clear that there was no handover location available that was consistent with the orders of his Honour Judge Heffernan. That is to say, unless the mother agreed to change the handover location, and she was not obliged to do so, the father could not possibly succeed on any application in relation to the mother failing to attend the changeover location. His Contravention applications in that respect are hopeless and doomed to fail.
17In relation to counts 49 onwards, these relate to the period following his release from custody. By that time, the orders had, in a practical sense, not been operating for years. The father had been in custody for a significant length of time, and to expect the old orders to simply, “roll on” as though nothing had happened in the meantime, strikes me as being rather an incredible approach to take.
18On 15 December 2023, his Honour Judge Brown in fact suspended the operation of the orders of 7 May 2020, at least insofar as the handover and time arrangements were concerned, although, to be fair to the father, the orders of his Honour, Judge Heffernan providing for communication in relation to the child appear to remain extant. In particular, order 4 provides that the parties were to communicate by use of a communication book passed between them and handovers and otherwise by the “[parenting]” application, with all such communication to be limited between the parties to occur once per fortnight.
…
22It seems to me that even if the father could establish a contravention on the mother’s part, there is little, if anything, the Court could usefully do about it, and this proceeding remains, as I have indicated, something of a “sideshow”.
23It could arguably be contended that the bulk of the contraventions are, in fact, vexatious by reason of the fact that they are doomed to fail by reason of the [C Centre] letter, which is exhibit 3. But even those counts which remain arguable by the father, in my respectful view, are inherently vexatious, border on an abuse of process and are a waste of the court’s time.
…
26There is no value and no utility in these Contravention proceedings whatsoever. If the father is correct and the mother has behaved in a way that shows disrespect for orders, these are very good reasons for him to make a case before his Honour Judge Brown that the orders should be varied in a way that increases his time, and his opportunity for engagement with, the child. All of these options remain open to the father and, indeed, on any reasonable view, they are far and away his best way of proceeding.
27For these reasons, I consider that the Application-Contravention as it sits before me, and noting also the father’s recent withdrawal of his solicitors, section 102NA issues, and the fact that the father attempted or did in fact file an affidavit of some one hundred and sixty (160) pages or so - all of these matters collectively combine to add weight to my view that the contravention proceedings are a waste of time, and, as I have indicated, border on vexatious and an abuse of process.
The primary judge dismissed the Application – Contravention and ordered the appellant to pay the respondent’s costs of $1200 within four months.
The appellant did not file his appeal in time and orders were made on 17 July 2024 granting leave to the appellant to extend the time in which to appeal.
On 30 August 2024, final orders were made that the respondent have sole decision-making responsibility, that the child live with the respondent, and that the child spend no time with the appellant until she is 14 years old and thereafter in accordance with her wishes.
THE APPEAL
The Notice of Appeal contains 23 grounds. The sheer number of grounds may, contrary to the appellant’s propositions, demonstrate that in fact none have merit (Thorne v Kennedy (2017) 263 CLR 85; Tame v New South Wales (2002) 211 CLR 317).
The appellant is not legally trained, and the Notice of Appeal and corresponding Summary of Argument accordingly suffer a number of deficiencies. The Summary of Argument is in many instances repetitive, convoluted and prolix. If there be an arguable appeal ground, it is obscured by irrelevancy and distraction. As the High Court observed in Neil v Nott (1994) 68 ALJR 509 at [510] “a frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy”.
The Summary of Argument filed 30 September 2024 did not comply with r 13.23(2)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) in that it did not sequentially deal with each of the 23 grounds explaining the error as asserted by each. Rather, the Summary of Argument proceeded in a disjointed fashion addressing some but not all of the grounds. In respect of others, no discernible ground of appeal, as opposed to grievance, was ascertainable.
Many of the grounds contended a denial of procedural fairness. Where a ground makes a contention that goes to the integrity of the court process, then those matters should be dealt with prior to addressing the balance of the appeal (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577). Grounds 1, 2, 3, 4, 5, 6 and 22 make such a contention and accordingly will be dealt with first and in the order, they were addressed in the Summary of Argument.
GROUNDS 1, 2, 3, 4, 5, 6 AND 22
1. His Honour's decision to proceed with the Hearing in the absence of Appellant with lawyer and the withdrawal by his Counsel denied the Appellant natural justice and procedural fairness.
2. His Honours decision to proceed with the Hearing when the counts be conducted by a judge at Adelaide as location of child with parties appearing in person and thereby denied procedural fairness.
3. The case involves a miscarriage of justice in the sense that there has not really been a trial according to law.
4. The father was not advised before the hearing of section 102NA issues as a result is unable to cross-examine the mother in any respect denied the Appellant natural justice and procedural fairness.
5. The primary judge's failure to manage a part of the proceedings caused manifest injustice to the [father] in that by not ensuring that parties had made full and complete disclosure of relevant material the [father] was thereby prejudiced in his ability to conduct his case with full knowledge of the material facts.
6. His Honour’s decision to accept the evidence from mothers legal counsel (Exhibit 3) without cross examination of that witness denied natural justice and procedural fairness to the appellant in circumstances where the Appellant was known to contest that evidence.
22. The primary judge erred by failing to afford the [father] procedural fairness by ordering the [father] to pay the mother’s assessed costs in relation to the application for contempt against the mother filed on 6 May 2023.
Procedural fairness requires that a party be given an opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550). The defeat of a litigant’s expectation is not, however, a denial of procedural fairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1). Nor would every departure from the rules of natural justice entitle an appellant to a new trial. If it can be demonstrated that the primary judge’s determination was inevitable, despite the lack of procedural fairness, a new trial will not be ordered (Stead v State Government Insurance Commission (1986) 161 CLR 141).
The commentary in the appellant’s Summary of Argument relating to Grounds 1, 2 and 3 when properly analysed do not point to error on the part of the primary judge. Insofar as it was contended that the primary judge proceeded with the hearing in the absence of the appellant’s representation (Ground 1) the transcript reveals that the appellant despite foreshadowing an adjournment, wished the matter to proceed. In that respect, the transcript reveals the appellant informing the primary judge as follows:
MR RIDGE: The situation at hand is that with respect to the adjournment, I have actually filed the affidavit, which is – particularised the information now. So I could say I’m ready to run, or ready to go, at this stage…
(Transcript dated 26 March 2024, p. 11 lines 15–17)
At no stage did the appellant, despite foreshadowing one, press any application for an adjournment. There was no denial of natural justice or procedural fairness.
Ground 2 contended that because the alleged contraventions arose out of proceedings filed in Adelaide, hearing the matter by audiovisual link in Newcastle denied the appellant procedural fairness. This assertion is without merit. In no part of the Summary of Argument does the appellant identify how conducting the hearing by audiovisual link in Newcastle was a denial of procedural fairness. Ground 3, beyond a mere assertion, does not, unaided by particular or argument establish any error on the part of the primary judge. There is no merit to Grounds 1, 2 and 3.
By Ground 4, the appellant contends that he was not advised of s 102NA and “in any respect was denied natural justice or procedural fairness”. The ground is without merit. Orders were made on 21 July 2023 (Appeal Book page 19), 13 October 2023 (Electronic Appeal Book, page 26) and 10 November 2023 (Electronic Appeal Book, page 30) all of which contained notations to the following effect:
If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
On each occasion the orders were made the appellant was legally represented. The appellant has no right to cross-examine the respondent and the “preclusion of one party from cross-examining another is not necessarily a deprivation of procedural fairness” (Lietzau & Lietzau [2024] FedCFamC1A 94 at [82]). There is no merit to Ground 4.
Ground 5 was not addressed in the Summary of argument and is taken to have been abandoned.
Ground 6 relates to the tender of Exhibit 3 which was a letter from C Centre referred to by the primary judge at [12]. The letter records as follows:
Dear [Ms Hurley]
I would like to confirm our telephone conversation on 22 July 2020 that the Children’s Contact Services (CCS) has now suspended service as [Mr Ridge] has refused to accept our offer of changeovers at our [Suburb E] CCS.
(Extract from Exhibit 3)
The appellant contends that the primary judge’s decision to accept the tender “without cross-examination of that witness denied natural justice and procedural fairness to the appellant in circumstances where the appellant was known to contest that evidence” (appellant’s Summary of Argument filed 30 September 2024, paragraph 58).
The document was admissible as a business record of C Centre constituting an exception to the hearsay rule irrespective of its admissibility pursuant to s 69ZT of the Act. The appellant’s contention that the document was admitted without cross-examination, denying to the appellant natural justice and procedural fairness, is erroneous for a number of reasons. The inability to cross-examine did not go to the admissibility of the document; the appellant did not seek to cross-examine the maker of the statement; the substance of the document was relied upon and referred to by the appellant in his affidavit filed 25 March 2024 and the fact that the appellant denied ever telling C Centre that he would not attend the changeover does not change the fact that C Centre would not facilitate the changeover, but, more importantly, informed the respondent of that fact on 22 July 2020. The balance of the paragraphs in the appellant’s Summary of Argument under the heading “Ground 6” have no relevance or bearing upon the argument in support of the ground. Ground 6 has no merit.
As to Ground 22, the appellant’s Summary of Argument in support of this ground infelicitously appear in support of Ground 23. Despite such an error, there is nothing said in support that demonstrates a denial of procedural fairness such as to establish error on the part of the primary judge.
Section 117(2) of the Act reposes in the court a discretion to make a costs order if the Court determines there are circumstances that justify this and if there are such circumstances, the court may make such order as it considers just having regard to the matters set out in s 117(2A) of the Act. The transcript reveals the following interchange between the primary judge and the appellant:
HIS HONOUR: [Ms P], do you apply for cost?
[MS P]: Yes, your Honour. For my cost in the amount of $1200, which is the legal aid scale and attendance for counsel today.
HIS HONOUR: Yes. [Mr Ridge], do you want to be heard on the question of costs?
[MR RIDGE]: No.
(Transcript dated 26 March 2024, p. 25 lines 40–45)
Having elected to say nothing the appellant cannot now be heard to complain (Metwally v University of Wollongong (1985) 158 CLR 447). There is no merit to Ground 22.
GROUND 7
7. His Honour erred in failing to give any proper or sufficient weight on the evidence filed by the father in the proceedings insofar as father filed an affidavit dated 25 March 2024 which comprises some one hundred and sixty (160) or so pages.
The appellant’s Summary of Argument, beyond restating the ground, advanced no argument in support. The affidavit had not been served, having only been filed the day before the hearing thereby denying procedural fairness to the respondent. In those circumstances, the matter could not proceed entirely as a consequence of the conduct of the appellant.
The length of the affidavit bore no relationship to the issues before the Court other than to demonstrate the unreasonableness in seeking to rely upon it. There was no explanation advanced as to why it was served so late and in circumstances where the appellant had already filed two earlier affidavits. There is no merit to Ground 7.
GROUNDS 8, 9, 10 AND 11
8. His Honour erred in failing to give any weight as to no evidence in defence filed by the mother in the proceedings and erred by failing to consider sufficiently the mother provided no circumstances or any reasons for counts of contempt.
9. His Honour erred in not finding that there was a flagrant challenge to the authority of the court by the mother, having repeatedly contravened parenting orders without reasonable excuse.
10. Where no weight was given to the fact that the mother's actions did demonstrate the necessary intent not to comply or failure to attempt to comply with parenting orders required by the Family Law Act (Cth).
11. The father contends that the primary judge was wrong as circumstances in which he had no time with child, it was then the mother's clear duty to arrange or further or other times as may be agreed in writing between the parties for the handovers as only she could carry out that task.
These grounds were dealt with together in the appellant’s Summary of Argument. The grounds, like much of the matters set out in the appellant’s Summary of Argument, proceed upon a series of erroneous assumptions. There was no obligation or requirement of the respondent to file any evidence. As the Full Court observed in Allwright & Allwright (2024) FLC 94-187 in the context of the privilege against self-incrimination:
41A consequence of the protection is that there is no requirement placed upon a respondent to file affidavit material in advance of the hearing or at all. A respondent is at liberty to present no evidence, or to present evidence either by affidavit or orally, and to defer determining whether to do so until the applicant has led all of their evidence in support of the allegation.
42A further consequence is that, should a respondent give evidence, the respondent is entitled to rely upon the privilege in the event that the respondent is cross-examined in relation to other alleged contraventions that are not then before the court, even if such cross-examination is in aid of establishing the contraventions that are then before the court.
Nor could the respondent be the subject of an application for contravention of an order expressed in such general terms as “such further or other time as maybe agreed in writing between the parties”. Reference to terms such as a “flagrant challenge to the authority of the court” or “intent” are misguided having no role to play in contravention proceedings pursuant to Division 13A of Part 7 of the Act.
There is no merit to Grounds 8, 9, 10 and 11.
GROUNDS 12 AND 13
12. The father contends that the primary judge was wrong in relation to contraventions 37 onwards, as the letter from [C Centre] (exhibit 3) if accepted was untested on its validity.
13. The father contends that the primary judge was wrong In relation to counts 49 onwards, as the court order remains in force until it is formally changed by a court order.
Ground 12 is merely an extension of Ground 6 and is similarly without merit. Ground 13 appears to contend that the orders remain in force contrary to the making of final orders on 30 August 2024.
Either way, neither ground is the subject of any argument in the appellant’s Summary of Argument and are taken to be abandoned.
GROUNDS 14, 15 AND 16
14. The primary judge failed to consider the alleged breach of Order 4 said to have occurred from 7 May 2020, it is plain that he failed to consider the significant total alleged contraventions of the order and thus an error. His Honour acknowledged at [para 18.] "the orders of his Honour, Judge Heffernan providing for communication in relation to the child appear to remain extant". His Honour acknowledged at [para 19.] "The father may well have a point about this, and it may be that these are matters which could be argued in a Contravention context".
15. The primary judge failed to consider the alleged breach of Order 1,2,3 of Court Order 5 February 2020 nor Order 3 of Court Order 7 May 2020 said to have occurred from 29 March 2020, it is plain that he failed to consider the significant number alleged contraventions of the order and thus an error. His Honour acknowledged at [para 19.] "Likewise, the earlier counts, being counts 25, 27, 29, 31, 33 and 35, which pre-date the letter from [C Centre] cancelling their use of the service. "These are also potentially arguable contraventions".
16. The failure of the primary judge to consider Each alleged breach on its own facts and, depending on whether the breach is said to amount to a contravention of the orders or to contempt of court, to be the requisite standard, either on the balance of probabilities or beyond reasonable doubt.
Grounds 14 and 15 are argued together in the appellant’s Summary of Argument contend error on the part of the primary judge in failing to consider an alleged breach of Order 4 made 7 May 2020, Orders 1, 2 and 3 made 5 February 2020, and Order 3 made 7 May 2020. The appellant’s Summary of Argument contends that the primary judge acknowledged that “contravention of final orders has occurred” (appellant’s Summary of Argument filed 30 September 2024, paragraph 7).
The appellant misrepresents what the primary judge observed, which simply was that the orders for communication (Order 4) remained operative and that the appellant may have had an arguable case on some of the grounds. That is not, however, the equivalent of an acknowledgment that a contravention had occurred. Reference to an alleged breach of orders made on 5 February 2020 is illustrative of the primary judge’s observation that the application bordered on an abuse of process. Those orders were extinguished on the making of the final orders (Millar and Millar (1983) FLC 91-326 at 78,220–78,221) and one fails to see what possible utility the application otherwise had in relation to that order.
The appellant’s Summary of Argument in support of the ground addresses counts 1-35, 36–48 and 49 onwards, notwithstanding that counts 1–24, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 48, 50, 52, 54, 56, 58, 60, 62, 64, 66 and 68 were withdrawn and dismissed by orders made 10 November 2023.
Insofar as there remained grounds available to the appellant to prosecute, all but six post-dated the letter from C Centre dated 28 July 2020 (Exhibit 3). The first in time of the remaining grounds asserted a contravention of orders made on 10 May 2020. The appellant’s affidavit identified that the changeover location was closed due to Covid-19 restrictions between 22 March 2020 and 17 May 2020 (Electronic Appeal Book, page 341) while the last in time of the alleged contraventions (26 July 2020) post-date the advice to the respondent on 22 July 2020 that the centre would not facilitate a changeover (Exhibit 3). At best there were four of the original 68 alleged contraventions of face-to-face time as well as the alleged breach of Order 4 in relation to the alleged failure by the appellant to register with the communication app.
The manner in which all of the counts were drafted were poor as to form such as inform their summary dismissal. In each case, the asserted count conflated alleged contravention of a number of orders rather than individually asserting a breach of each individual order. Further, one of the orders the subject of an alleged breach was expressed with such breadth and imprecision as to be almost incapable of enforcement with the logical consequence.
It is apposite to observe that while the appellant contends that the primary judge failed to consider various alleged breaches, the primary judge at some length attempted to explore with the appellant the utility of the application in circumstances where he had not seen the child for nearly four years, in no small measure due to his incarceration and that there was before the Court his application to vary the orders. The approach of the primary judge in exploring the utility of the appellant’s application, irrespective of assertions as to abuse of process, was entirely in conformity with the provisions of s 69ZN of the Act which apply to all child-related proceedings, including applications for contravention.
A reading of the appellant’s affidavit, the transcript and his Summary of Argument reveal that the appellant’s focus appears to be upon punishment of the respondent for alleged breach of orders. As much is clear from the resort to phrases (albeit misplaced) such as flagrant challenge to the authority of the court, parental alienation, the necessity for a bond and references to cases involving terms of imprisonment. As Kent J observed in Keehan & Keehan (2019) 60 Fam LR 276:
22.The provisions of Division 13A (Consequences of failure to comply with orders, and other obligations, that affect children) and, importantly, the fact that Division 13A is included within Part VII of the Act, appear to manifest a clear legislative intention. That is, an intention that Division 13A is directed only to ensuring continued and future compliance with operative parenting orders as distinct from performing any separate or discrete role of deterrence from, or punishment of, non-compliance with orders.
23.In other words, the purpose of Division 13A is prospective and is to be contrasted with the purposes of punishment for contempt and the powers to deal with contempt in s 112AP of the Act. There can be no doubt that proceedings under s 112AP of the Act have the dual purpose of coercion, to enforce compliance with orders, as well as a punitive purpose of imposing punishment for (past) non-compliance. The punitive element attracts sentencing principles such as specific and general deterrence.
The primary judge’s observations that the appellant’s application bordered on an abuse of process was clearly a reference to the Court’s power to prevent an abuse of its process. As the High Court observed in Jeffery and Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75:
28The term “abuse of process”, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed. In Walton v Gardiner the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be “manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people”. This does not mean that abuse of process is a term at large or without meaning. Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”.
(Footnotes omitted)
The Court has a duty to conserve its resources and ensure that they are available to all litigants, consistent with the overarching purpose of family law litigation as expressed in s 67 of the Act and r 1.04 of the Rules. It has the power to make orders that prevent an abuse of its process (Williams v Spautz (1992) 174 CLR 509; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 320).
Where the evidence had been filed late, where the appellant could not cross examine the respondent, where the appellant had initially brought 68 counts each asserting a breach of a number of orders and where at best less than a handful could proceed assuming overcoming the lateness of the evidence and the inability to cross examine and where the appellant had an application to vary the parenting orders the subject of the application; the primary judge accurately described the proceedings as bordering on an abuse of process.
There is no merit to Grounds 14 and 15.
Grounds 14 and 15 would appear to conflict with Ground 16. Either way, Ground 16 is not the subject of any argument in the Summary of Argument and is taken to be abandoned.
GROUND 17, 18, 19 AND 20
17. The judge erred by saying "that even if the father could establish a contravention on the mother's part, there is little, if anything, the Court could usefully do about it". The judge further saying "What is the Court to do about these ancient contraventions". And "even if the father makes out his case. What is the Court to do in terms of the alleged communication contraventions".
18. The judge was wrong in law in finding that the Court provided no power for him to make orders, consequential on finding the contempt allegations proved.
19. His Honour erred in failing to give any or sufficient weight to if a court finds the mother has failed to comply with a parenting order without reasonable excuse, it may impose a penalty, a court may: vary the primary order, order to attend a post separation parenting program, compensate for time lost with a child as a result of the contravention, required to enter into a bond, require to participate in community service, order to pay a fine, order to a sentence of imprisonment.
20. His Honour erred in failing to give any or sufficient weight to if a party breaches such orders penalties follow under division 13A of part VII of the Family Law Act 1975 (Cth).
The appellant’s Summary of Argument sought to address various events prior to 7 May 2020 that had no relevance to the subject Contravention – Application or the matters properly the subject of appeal. The appellant’s application was dismissed by the primary judge for various reasons including the change of circumstances arising from the appellant’s incarceration, that the application was inherently vexatious, bordered an abuse of process and where there were proceedings before another judge for parenting orders in consequence of the appellant having filed a parenting application, where the appellant was prevented from cross-examining the respondent and where he sought to move on an affidavit that had been filed the day before and not served on the appellant.
Of the remaining grounds available to the appellant (see the discussion above) it was questionable whether the appellant could even establish a prima facie case in circumstances where his evidence had only been filed the day before and, assuming he could, he was prevented from cross examining the respondent who if she adduced evidence was unable to be challenged by cross-examination.
The primary judge’s observations that the application bordered on an abuse of process was well framed, for the reasons adverted to earlier.
There is no merit to Grounds 17–20.
GROUND 21
21. The judge erred that these proceedings be dismissed in their entirety.
GROUND 23
23. His Honour erred that these Contravention proceedings remains open and far and away his best way of proceeding is his substantive (or primary) proceedings filed on 19 May 2023. The fact is that Court is not making any findings about Contravention proceedings.
Beyond merely stating that the primary judge erred in dismissing the application, the appellant’s Summary of Argument expanded no further on the grounds. These grounds merely repeat the appellant’s earlier grievances with the primary judge’s dismissal of his application which have been dealt with extensively above.
DISPOSITION
In view of the above reasons, orders will be made for the appeal to be dismissed.
COSTS
The respondent sought an order for $4,268 by way of costs in the event the appeal was dismissed. The respondent is legally aided, and the sum sought is based on the funding provided by Legal Services South Australia to the respondent. The order was opposed by the appellant.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
It is well-settled law that no one factor in s 117(2A) is determinative, and the Court may give such weight as it considers relevant to any factor (PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123).
There is no evidence as to either party’s financial circumstances. Even assuming the appellant is in an inferior financial position, impecuniosity is not a bar to the making of a costs order (Nada v Nettle (Costs) (2014) FLC 93-612).
The appellant submitted in opposing costs that the proceedings had been necessitated by the failure of the respondent to comply with an order (s 117)(2)(d) of the Act). While there may be some superficial merit to the submission, the application’s dismissal for reasons unrelated to the respondent’s conduct militates against its relevance.
The respondent submits that the appellant has been wholly unsuccessful and none of the grounds had merit.
I am satisfied that where the appeal was wholly unsuccessful and where the grounds had no merit are matters sufficient to justify the making of a costs order in the sum sought by the respondent and will so order.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 7 November 2024
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