Segers and Tacason (No 2)
[2015] FamCAFC 173
•26 August 2015
FAMILY COURT OF AUSTRALIA
| SEGERS & TACASON (NO. 2) | [2015] FamCAFC 173 |
| FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – Where the father appeals against interim parenting orders – Where the orders provided the child would spend supervised daytime time with the father at times agreed between the parties and for the proceedings to be relisted upon the court receiving material from the parties’ criminal proceedings – Where the father asserts the primary judge erred in failing to list the parties’ competing applications for interim hearing – Where leave is necessary to appeal against an interlocutory decree and leave was not sought – Where the father asserts the orders were made in circumstances which denied him procedural fairness – Where the father’s solicitor agreed to orders for supervised time to operate until the court received the further material from the criminal proceedings and the primary judge could determine the parties’ applications – Where error not established – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence –Where it is unnecessary to consider the application as error was not established – Application dismissed. FAMILY LAW – COSTS – Where the father’s appeal was wholly unsuccessful – Where the circumstances justify an order for costs – Costs ordered against the father fixed in the amount of $5,000. |
| Family Law Act 1975 (Cth): ss 60CC(5), 93A Family Law Regulations 1984 (Cth): reg 15A |
| Goode & Goode (2006) FLC 93-286 SCVG & KLD (2014) FLC 93-582 |
| APPELLANT: | Mr Segers |
| RESPONDENT: | Ms Tacason |
| FILE NUMBER: | CAC | 661 | of | 2014 |
| APPEAL NUMBER: | EA | 63 | of | 2015 |
| DATE DELIVERED: | 26 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 26 August 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDERS MADE: | 9 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Goodchild |
| SOLICITOR FOR THE APPELLANT: | Elizabeth Fleming & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Thomas |
| SOLICITOR FOR THE RESPONDENT: | Wendy Evans Lawyer |
Orders
The appeal be dismissed.
The Application in an Appeal filed on 7 August 2015 be dismissed.
The appellant pay the respondent’s costs of the appeal in the amount of $5,000, to be paid within six (6) months.
It is noted that
The Court requests that the Federal Circuit Court relist the outstanding interim proceedings as soon as possible.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Segers & Tacason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 63 of 2015
File Number: CAC 661 of 2014
| Mr Segers |
Appellant
And
| Ms Tacason |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 7 August 2015 Mr Segers (“the father”) appeals against an interim parenting order and other orders made by Judge Neville on 9 April 2015. The orders concern the parties’ son, C, who was born in 2013 (“the child”).
His Honour ordered that the parties and child attend upon a family consultant for the purpose of undertaking a family report pursuant to s 62G of the Family Law Act 1975 (Cth) (“the Act”) (Order 1); and until further order the father spend supervised time during the day with the child as agreed between the parties (Order 2); that the solicitors for the father provide the court with a copy of information and documents from Local Court proceedings which involve the parties (Order 3); and for the matter to be relisted at a date and time to be advised following compliance with Order 3 (Order 4).
Although the Amended Notice of Appeal indicates that the father only appeals the supervised time order, his grounds of appeal also purport to challenge Order 4.
The father’s application for leave to adduce further evidence in the appeal which was filed on 7 August 2015 must also be considered. The further evidence being his affidavit and the affidavits of the paternal grandfather and paternal grandmother all filed on 7 August 2015. It is common ground that this application only needs to be considered in the event that error is established, and that I am persuaded that the court should re-exercise the discretion of the primary judge.
The respondent to this appeal is the child’s mother, Ms Tacason (“the mother”). The mother seeks to uphold the decision of the primary judge. She also opposes the father’s application for leave to adduce further evidence. In the event leave is given the mother would seek to present further evidence and argues that if the form and extent of supervised time is to be re-visited, then that issue would more appropriately be dealt with at first instance in the Federal Circuit Court.
Pursuant to s 94AAA(3) of the Act, the Chief Justice issued a direction that this appeal be determined by a single judge.
Relevant Background
So as to provide context to the appeal, reference needs to be made to some key and largely uncontroversial facts.
The parties commenced a de facto relationship in 2009 and separated in early 2014. C is their only child.
The father commenced parenting proceedings on 24 April 2014.
On 5 August 2014, orders were made in the Federal Circuit Court in accordance with the parties’ agreement. By these orders the child was to continue to live with the mother and would spend time with the father each Sunday, (excluding the first Sunday of every month) from 9.00 am to 6.00 pm, on Mondays for the same period and each Wednesday from 9.00 am until 4.30 pm. Provision was also made for such additional time as might be agreed.
The interim orders were expressed to continue until 4 August 2015, the intention being that by then the parties would have either negotiated final parenting orders or, if they failed to do so, whatever orders would govern the future would need to be determined by the court.
On 25 November 2014, his Honour made orders by agreement which finalised property issues. The parenting matter was adjourned to 9 April 2015 for further directions.
On 18 January 2015, there was an ugly incident between the parties when the mother delivered the child to the father for the purposes of spending time with him. The mother reported the incident to police and the father was charged with assault and an interim Apprehended Domestic Violence Order (ADVO) was made for the mother’s protection.
These matters came before the Local Court on 6 February 2015. On that occasion, the terms of the ADVO were amended to make it clear that the father was precluded from contacting the mother, but not from spending time with the child.
The father was found guilty of assault on 26 February 2015. It is his evidence that the circumstances under which it was that he had committed the assault were less serious than the case as initially presented by the mother and prosecuted by police.
It would appear to be common ground that the father did not have contact with the child from 18 January 2015. On 1 April 2015, the father filed a contravention application in the Federal Circuit Court in Canberra in which he alleged the mother had contravened the interim orders of 5 August 2014.
On 7 April 2015, the mother filed an Application in a Case in which she sought to suspend the orders of 5 August 2014 until 4 August 2015 and that during the interregnum the child have supervised day time contact with the father.
These applications came before the primary judge on 9 April 2015 for directions. Both parties and their legal representatives appeared by telephone. On that day, his Honour declined to list the applications for hearing and said, in relation to the contravention application, he would not do so until the transcript of the criminal proceedings in the Local Court was provided. He also ordered a family report and varied the interim consent orders by requiring the father to spend supervised time with the child during the day at such times as may be agreed between the parties.
Provision was made in his Honour’s orders for the contravention application and the Application in a Case to be relisted as soon as the transcript was provided by the solicitor for the father.
The father’s solicitor indicated during the hearing that she had ordered a copy of the transcript and judgment in the criminal proceedings, which she anticipated might take up to six weeks to deliver. His Honour’s order that she provide those documents accords with her undertaking, in effect, to provide the documents once they became available.
On 4 May 2015 the father filed an appeal against his Honour’s orders. He also filed an application to expedite the hearing of the appeal. That application came before me for hearing on 21 May 2015. On that occasion the father’s application for expedition was dismissed, and he was ordered to pay the mother’s costs of the application fixed in the amount of $550.
It is relevant to note that I recorded in my oral reasons that the primary judge’s reasons for judgment for the orders made on 9 April 2015 had not been published. It has since been confirmed that the transcript of the hearing on 9 April 2015 constitutes his Honour’s reasons.
Grounds of Appeal
The father’s grounds of appeal assert the primary judge erred:
(1)By refusing to set the mother’s application down for an interim hearing;
(2)In failing to follow the legislative pathway in the exercise of his discretion notwithstanding judicial guidance given in Goode & Goode (2006) FLC 93-286;
(3)In changing the interim orders for the father to have time with the child without giving the father an opportunity to respond to the allegations raised by the mother;
(4)In not hearing the father’s contravention application;
(5)In failing to give any or little weight to the mother’s non-compliance with the operative orders, and the alleged detrimental impact that a reduction in time would have on the child’s relationship with the father; and
(6)By denying procedural fairness to the father.
Before I embark on a discussion of the merits of the grounds of appeal it is necessary to include portions of the transcript to demonstrate the sequence of events at the hearing on 9 April 2015.
I incorporate from page 2 of the transcript line 13 commencing “Ms Cooney” through to line 21. Then, his Honour’s remarks at line 31 through to 33 on the same page, on the same page commencing at line 40 with Ms Davis through to line 7 on page 3. Then, on page 3 commencing with Ms Cooney at line 13 through to page 4, line 7 as follows:
MS COONEY: … Your Honour, I would be suggesting, given the two applications which are before the court at the moment, that this matter needs to be set down for an interim hearing and, essentially, both those applications should be able to be dealt with appropriate by your Honour at an interim hearing.
HIS HONOUR: So this – really, that the application that was filed on 7 April seeks to vary the August 2014 orders; correct?
…
HIS HONOUR: Please correct me if I’m wrong, but do any Rice & Asplund issues arise under this application to vary the orders?
…
MS DAVIS: Your Honour, we’re seeking that the orders be varied, given [the mother]’s concerns with some incidents of violence which have occurred against the mother, and also incidents of reckless parenting. Therefore, we’re seeking that those orders be varied.
HIS HONOUR: But can I ask: how can I do that on an interim basis, because they’re quite serious allegations.
MS DAVIS: Yes, your Honour. That’s right.
HIS HONOUR: So, again, how can I deal with the matter on an interim basis and how can I deal with it without any independence evidence? And I note that, amongst other orders sought, is that there be a family report which I assume parties would be seeking that it be a section 62G report, rather than a section 11F report; correct or not?
…
MS COONEY: Your Honour, this is Ms Cooney speaking. If I could assist, I think, certainly from my client’s perspective – we were served with the respondent’s affidavit yesterday and I’ve had a quick read of it, although haven’t had the opportunity to get some in-depth instructions, but, looking at it, I think there would be some Rice & Asplund issues. Certainly, I think it would be fair for my client to concede that there has been one issue that has occurred since the orders were made on the last occasion, that being the criminal matters which were raised in both my client’s contravention application and the application in a case that was filed by the respondent mother.
The difficulty for my client is, of course, at this stage, he has not had any contact with the child since about January this year. It has been a good three months now. If your Honour was not inclined to deal with these issues on an interim basis and was just inclined that the matter go to a family report and then a family hearing, certainly my client would consent to that, but only on the understanding that the current orders – consent orders that are in place were to continue and that the respondent mother start complying with those orders. Alternatively, I would have to push for an interim hearing if the mother is not prepared to facilitate that time.
HIS HONOUR: Right. Can I ask: are any criminal matters still on foot or have they all been disposed of?
MS COONEY: It has all been resolved, your Honour, and for the assistance of the court I have ordered a transcript and a copy of the judgment of those criminal proceedings, so that can be put before your Honour at a later date.
HIS HONOUR: So do you know when that’s likely to see the light of day?
MS COONEY: They usually have about a six week turnaround for those transcripts. Hopefully it won’t take that long, but I can’t give you any more indication than that.
HIS HONOUR: Right. I’m just wondering, again, because … I’ve got a sudden surge of evidence with a judgment and transcript on its way in the next, approximately, four to six weeks, … I’m just wondering, procedurally, what’s going to be the most appropriate way, because a variation of consent orders is not something, as I’ve already said, that I would be minded to do on just an interim basis, having regard to the seriousness of the allegations that are made. Secondly, I’m just wondering about whether or not there’s any utility in appointing an ICL, notwithstanding the age of the child, because I would be concerned – assume that I’m minded to make an order for there to be a report, I would be concerned that there is no time that the child spends with the non-resident parent between now and whenever we get that report. Are there any views or comments?
…
His Honour ultimately determined (transcript of proceedings on 9 April 2015 page 6, lines 7-16; 30-47):
HIS HONOUR: But again, this is the contest where one side says that the consent orders should continue. The other side says the orders need to be varied, be that other time should go ahead but it needs to be supervised. I don’t see that I can make any determination on that (a) until after I’ve got the judgment from the local court proceedings and (b) that I’ve got some other independent evidence. Because otherwise on its face, I’ve got two very significantly polarised positions of consent orders not all that long ago, as in August of last year, but (b) AVO proceedings that – I will see the detail of those once the transcript and the judgment arises. And I don’t see that I can make any determination without some independent evidence, whether it’s simply the judgment in the local court.
…
HIS HONOUR: So what I’m minded to do is firstly order a section 62G report. The matter will stand adjourned to a date to be advised, pending receipt of the judgment from the local court. I would be proposing – at the very least more as a protective measure; it’s not said in any pre-emptive way – that the time with the father be supervised on an interim basis just so that there can be ongoing contact between the father and the child. And that that would be revisited once I get the material from the local court. And then we will see when and how we’re going to get the section 62G report. I readily acknowledge that it’s not an ideal situation but with such polarised assertions on both sides, it’s imperative that the father spend time with the child but also the court exercise its precautionary and protective role till there’s an opportunity to consider the matters in a more fulsome way. So - -
MS COONEY: Your Honour, we would be happy with some sort of orders for supervision as your Honour has indicated.
HIS HONOUR: Yes. So I will leave the lawyers to sort out the details of that so that supervised time is to be agreed. I would be keen for as much time as reasonably practicable, especially given the age of the child.
Turning then to grounds 1 and 4. It will be recalled that ground 1 asserts error by his Honour in failing to list the mother’s application for interim orders for an interim hearing. Ground 4 is to the effect that his Honour erred by not hearing the father’s contravention application. As to ground 1, it is difficult to understand the basis upon which the father asserts that he can challenge his Honour’s failure to list an application brought by another person for hearing. Particularly in circumstances when the person who initiated the application did not ask for it to be listed for hearing, and the father had not yet filed a response to that application.
It will be recalled that the mother’s application was not listed for hearing on 9 April 2015. It is not possible to discern what it is that his Honour should have done with that application that the father could be heard to challenge on appeal. The challenge as framed is to an interlocutory decree which is not a prescribed decree as that term is defined in reg 15A of the Family Law Regulations 1984 (Cth). It is a decree in relation to a matter of practice and procedure, and in my view leave is necessary for this ground to be agitated. Although leave was not sought, had a meritorious argument been advanced in relation to ground 1 I would have invited further submissions on the point. As it is, ground 1 cannot succeed.
Turning then to ground 4, namely, that his Honour erred by not hearing the father’s contravention application. This can be easily disposed of. First, the application was not listed for hearing. Secondly, there was no application made to his Honour on 9 April 2015 to hear the application that day. Counsel on appeal argued that even though the solicitor then appearing for the father did not ask his Honour to hear and determine the contravention application, given the seriousness of the issues between the parties it was incumbent on his Honour to force, it would seem, the solicitor to run the father’s application to hearing that day. The proposition only need be stated to be understood as misguided.
Order 4 is also an interlocutory decree, which is not a prescribed decree and thus again the issue of leave is relevant. Again, submissions were not made in support of why leave would be given. Had there been any apparent merit to the challenge raised by ground 4 I would have adopted a similar approach and invited submissions about why leave ought be given. The ground is demonstrably without merit and must fail.
Grounds 2 and 3 can be considered together.
As earlier noted, ground 2 asserts error by the primary judge in failing to follow the legislative pathway set out in Goode & Goode. Ground 3 asserts that the primary judge erred in amending the interim order for the father to have time with the child without giving the father an opportunity to respond to the allegations raised by the mother.
As can be seen gleaned from the earlier portions of the transcript, the father’s solicitor agreed to “some sort of orders” for supervised time between the father and the child to operate until such time as the court received the additional evidence from the criminal proceedings and his Honour was in a position to make a determination on the competing applications. His Honour clearly engaged with the solicitor for the father about what such an order might comprise. Without demurrer from the father’s solicitor, his Honour proposed that the parties “sort out the details of supervised time” indicating his preference for “as much time as reasonably practicable.” The father’s solicitor then asked for his Honour’s opinion on whether overnight supervised time between the child and the father would be appropriate. To which his Honour responded:
I don’t think so. I mean, the parties can obviously agree on anything as between themselves.
Thus the order for supervised day periods between the father and the child was made, in my view, clearly with the agreement of the parties. It needs to be understood that during the exchanges when his Honour clearly set out the nature and form of the order which he had in mind he was not asked to do more than he did. He was not asked, for example by the solicitor for the father to make provisions for specific times during which the daytime supervised periods might take place, or to address the question of frequency. There was no submission made to his Honour, for example that an order which was predicated on the parties reaching an agreement would be unenforceable.
It is no answer to say that even though none of these matters was agitated before his Honour that his Honour was nonetheless obliged to address them. His Honour’s orders were, when properly considered in the context of the entire exchanges recorded in the transcript, clearly made with the agreement of the parties.
Pursuant to s 60CC(5) of the Act, in making orders by agreement:
The Court may, but is not required to, have regard to any or all of the matters set out in section 60CC(2) and (3).
Further, when it is clear that the orders were intended to last for no more than a few weeks, and to in fact reinstate contact between the child and the father I am not persuaded his Honour needed to do more or say more than he did (SCVG & KLD (2014) FLC 93-582).
Not only am I persuaded that ground 2 must fail, but so too must ground 3. The father, through his solicitor, was given a proper opportunity to participate in the form of order which would operate for the short period pending the receipt of the transcript and judgment from the Local Court. His Honour did not dispose of the mother’s Application in a Case, and it is one of the applications to which Order 4 is directed. In my view, his Honour afforded the father an appropriate degree of procedural fairness, and the challenge raised by ground 3 will fail.
Ground 5 is said to go to the heart of this appeal, in particular to his Honour’s interim order for supervised time. It is here argued that his Honour failed to give any or gave too little weight to the mother’s non-compliance with the August 2014 orders. Again, this can be quickly disposed of by reference to the transcript. His Honour made orders in accordance with an agreement reached during a discussion between the Bench and those appearing for the parties.
Otherwise, ground 6 makes a generalised assertion of the father being denied procedural fairness. For reasons I have already given this ground is not made out. The effect of this is that the father has failed to establish appellate error, and the appeal will be dismissed.
The further evidence application, as I have already explained, was to be considered only in the event that error was established and the court was invited to re-exercise the discretion of the primary judge.
Conclusion and Costs
The mother, having been wholly successful, seeks an order that the father pay her costs. The amount sought is $6,000 and is pressed on the basis of the father’s lack of success. Reference is made in particular to the challenge raised by ground 1 to demonstrate that this was a largely misguided appeal. I agree.
In fairness to the father, it is pointed out that notwithstanding Order 4, the attempts by his solicitor, which since 22 July 2015 have had the support of the mother, to relist the matter, have fallen on stony ground. The most recent correspondence from his Honour’s chambers, which is somewhat surprising in its volume and complexity, indicates that his Honour would not relist the matter because the first instance file was with the appeals registry. That was true for a period of about one week, which coincided with the hearing of the application for expedition.
As counsel for the father explained the appeal has been pursued, first, because the father thought it had some reasonable prospects and secondly, out of frustration at his inability to have the matter relisted before the primary judge. The point being that the transcript was provided on 12 June 2015 and it was not unreasonable that both parties anticipated that the interim application at least would have been listed and heard before today. Although that is true, it is no answer to the engagement of an appeals process.
Notwithstanding the frustration felt by the father at his inability to have the proceedings at first instance relisted, it is appropriate to place greater weight on the fact that he has been entirely unsuccessful in this appeal, and an order for costs, in my view, is proper.
The father is of somewhat limited means. They must be quite limited, because it would seem that he continues to be in default of an order that he pays $550 ordered against him on his unsuccessful application for expedition of this appeal. The amount sought of $6,000 is a little surprising, given the small compass of the appeal. In my view, taking into account that those appearing for the mother have had to travel a very considerable distance, the appropriate amount to award is $5,000. The father will have six months within which to pay that sum.
The orders therefore are:-
(1)The appeal be dismissed.
(2)The Application in an Appeal filed on 7 August 2015 be dismissed.
(3)The appellant pay the respondent’s costs of the appeal in the amount of $5,000, to be paid within six (6) months.
I certify that the preceding forty seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 August 2015.
Associate:
Date: 8 September 2015
0
2